[House Report 109-749]
[From the U.S. Government Publishing Office]
Union Calendar No. 451
109th Congress, 2d Session - - - - - - - - - - - - House Report 109-749
REPORT ON THE ACTIVITIES
of the
COMMITTEE ON THE JUDICIARY
of the
HOUSE OF REPRESENTATIVES
during the
ONE HUNDRED NINTH CONGRESS
pursuant to
Clause 1(d) Rule XI of the Rules of the
House of Representatives
January 2, 2007.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
REPORT ON THE ACTIVITIES OF THE COMMITTEE ON THE JUDICIARY
Union Calendar No. 451
109th Congress, 2d Session - - - - - - - - - - - - House Report 109-749
REPORT ON THE ACTIVITIES
of the
COMMITTEE ON THE JUDICIARY
of the
HOUSE OF REPRESENTATIVES
during the
ONE HUNDRED NINTH CONGRESS
pursuant to
Clause 1(d) Rule XI of the Rules of the
House of Representatives
January 2, 2007.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
COMMITTEE ON THE JUDICIARY
House of Representatives
ONE HUNDRED NINTH CONGRESS
------
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR S. SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
JOHN N. HOSTETTLER, Indiana WILLIAM DELAHUNT, Massachusetts
BOB INGLIS, South Carolina ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL E. ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
DARRELL E. ISSA, California
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittees of the Committee on the Judiciary
------
Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
DANIEL E. LUNGREN, California ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida MAXINE WATERS, California
STEVE CHABOT, Ohio MARTIN TI. MEEHAN, Massachusetts
BOB GOODLATTE, Virginia WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida ANTHONY D. WEINER, New York
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
------
Commercial and Administrative Law
CHRIS CANNON, Utah, Chairman
HOWARD COBLE, North Carolina MELVIN L. WATT, North Carolina
TRENT FRANKS, Arizona WILLIAM D. DELAHUNT, Massachusetts
STEVE CHABOT, Ohio CHRIS VAN HOLLEN, Maryland
MARK GREEN, Wisconsin JERROLD NADLER, New York
J. RANDY FORBES, Virginia DEBBIE WASERMAN SCHULTZ, Florida
LOUIE GHOMERT, Texas
------
Courts, The Internet, and Intellectual Property
LAMAR S. SMITH, Texas, Chairman
HENRY J. HYDE, Illinois HOWARD BERMAN, California
ELTON GALLEGLY, California JOHN CONYERS, California
BOB GOODLATTE, Virginia RICK BOUCHER, Virginia
WILLIAM L. JENKIN, Tennessee ZOE LOFGREN, California
SPENCER BACHUS, Alabama MAXINE WATERS, California
BOB INGLIS, South Carolina MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
DARRELL E. ISSA, California ANTHONY D. WIENER, New York
CHRIS CANNON, Utah ADAM B. SCHIFF, California
MIKE PENCE, Indiana LINDA T. SANCHEZ, California
J. RANDY FORBES, Virginia
------
Immigration, Border Security, and Claims
JOHN N. HOSTETTLER, Indiana, Chairman
STEVE KING, Iowa SHEILA JACKSON LEE, Texas
LOUIE GOHMERT, Texas HOWARD L. BERMAN, California
LAMAR SMITH, Texas ZOE LOFGREN, California
ELTON GALLEGLY, California LINDA T. SANCHEZ, California
BOB GOODLATTE, Virginia MAXINE WATERS, California
DANIEL E. LUNGREN, California MARTIN T. MEEHAN, Massachusetts
JEFF FLAKE, Arizona
ROBERT D. INGLIS, South Carolina
DARRELL E. ISSA, California
------
Constitution
STEVE CHABOT, Ohio, Chairman
TRENT FRANKS, Arizona JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MARK GREEN, Wisconsin CHRIS VAN HOLLEN, Maryland
STEVE KING, Iowa
TOM FEENEY, Florida
LETTER OF TRANSMITTAL
----------
House of Representatives,
Committee on the Judiciary,
Washington, DC, January 2, 2007.
Hon. Karen L. Haas,
Clerk of the House of Representatives,
Washington, DC.
Dear Ms. Haas: Pursuant to clause 1(d) of rule XI of the
Rules of the House of Representatives, I am transmitting the
report on the activities of the Committee on the Judiciary of
the U.S. House of Representatives in the 109th Congress.
Sincerely,
F. James Sensenbrenner, Jr., Chairman.
Union Calendar No. 451
109th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 109-749
======================================================================
REPORT ON THE ACTIVITIES OF THE COMMITTEE ON THE JUDICIARY
_______
January 2, 2007.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
Jurisdiction of the Committee on the Judiciary
The jurisdiction of the Committee on the Judiciary is set
forth in Rule X, 1.(l) of the rules of the House of
Representatives for the 109th Congress:
* * * * * * *
Rule X.--Establishment and Jurisdiction of Standing Committees
THE COMMITTEES AND THEIR JURISDICTION
1. There shall be in the House the following standing
committees, each of which shall have the jurisdiction and
related functions assigned to it by this clause and clauses 2,
3, and 4. All bills, resolutions, and other matters relating to
subjects within the jurisdiction of the standing committees
listed in this clause shall be referred to those committees, in
accordance wtih clause 2 of rule XII, as follows:
* * * * * * *
(l) Committee on the Judiciary.
(1) The judiciary and judicial proceedings, civil and
criminal.
(2) Administrative practice and procedure.
(3) Apportionment of Representatives.
(4) Bankruptcy, mutiny, espionage, and
counterfeiting.
(5) Civil liberties.
(6) Constitutional amendments.
(7) Criminal law enforcement.
(8) Federal courts and judges, and local courts in
the Territories and possessions.
(9) Immigration policy and non-border enforcement.
(10) Interstate compacts generally.
(11) Claims against the United States.
(12) Meetings of Congress; attendance of Members,
Delegates, and the Resident Commissioner; and their
acceptance of incompatible offices.
(13) National penitentiaries.
(14) Patents, the Patent and Trademark Office,
copyrights, and trademarks.
(15) Presidential succession.
(16) Protection of trade and commerce against
unlawful restraints and monopolies.
Printed Hearings \1\
Serial No. and Title
----------
1. Implications of the Booker/Fanfan Decisions for the Federal
Sentencing Guidelines. Subcommittee on Crime, Terrorism, and Homeland
Security. February 10, 2005.
---------------------------------------------------------------------------
\1\ Includes all hearings that were printed before Jan. 2nd, 2007.
There were four hearings from the 109th Congress that had not been
printed at the time that this report was filed, and thus are not
included in this list.
---------------------------------------------------------------------------
2. Trademark Dilution Revision Act of 2005. Subcommittee on Courts,
the Internet, and Intellectual Property. February 17, 2005. (H.R. 683).
3. Child Interstate Abortion Notification Act. Subcommittee on the
Constitution. March 3, 2005. (H.R. 748).
4. Immigration Enforcement Resources Authorized in the Intelligence
Reform and Terrorism Prevention Act of 2004. Subcommittee on
Immigration, Border Security, and Claims. March 3, 2006.
5. Interior Immigration Enforcement Resources. Subcommittee on
Immigration, Border Security, and Claims. March 10, 2005.
6. Digital Music Licensing and Section 115 of the Copyright Act.
Subcommittee on Courts, the Internet, and Intellectual Property. March
8, 2006.
7. Holmes Group, the Federal Circuit, and the State of Patent
Appeals. Subcommittee on Courts, the Internet, and Intellectual
Property. March 17, 2005.
8. Immigration and the Alien Gang Epidemic: Problems and Solutions.
Subcommittee on Immigration, Border Security, and Claims. April 13,
2005.
9. Digital Music Inoperability and Availability. Subcommittee on
Courts, the Internet, and Intellectual Property. April 6, 2005.
10. Reauthorization of the USA PATRIOT Act (Part 1). Full
Committee. June 8, 2005.
11. Committee Print Regarding Patent Quality Improvement (Parts 1
and 2). Subcommittee on Courts, the Internet, and Intellectual
Property. April 20, 28, 2005.
12. USA PATRIOT Act: A Review for the Purpose of its Re-
authorization. Full Committee. April 6, 2005.
13. Implementation of the USA PATRIOT Act: Prohibition of Material
Support Under Sections 805 of the USA PATRIOT Act 6603 of the
Intelligence Reform and Terrorism Prevention Act of 2004. Subcommittee
on Crime, Terrorism, and Homeland Security. May 10, 2005.
14. Implementation of the USA PATRIOT Act: Section 212 Emergency
Disclosure of Electronic Communications to Protect Life and Limb.
Subcommittee on Crime, Terrorism, and Homeland Security. May 5, 2005.
15. Implementation of the USA PATRIOT Act: Effect of Section 203(b)
and 203(d) on Information Sharing. Subcommittee on Crime, Terrorism,
and Homeland Security. April 19, 2005.
16. Implementation of the USA PATRIOT Act: Section 218, Foreign
Intelligence Information (``The Wall''). Subcommittee on Crime,
Terrorism, and Homeland Security. April 28, 2005.
17. Implementation of the USA PATRIOT Act: Sections of the Act that
Address the Foreign Intelligence Surveillance Act (FISA). (Parts 1 and
2). Subcommittee on Crime, Terrorism, and Homeland Security. April 26,
28, 2005.
18. Implementation of the USA PATRIOT Act: Sections of the Act that
Address Crime, Terrorism, and the Age of Technology, Sections 209, 217,
and 220. Subcommittee on Crime, Terrorism, and Homeland Security. April
21, 2005.
19. Implementation of the USA PATRIOT Act: Sections 505 and 804.
Subcommittee on Crime, Terrorism, and Homeland Security. May 26, 2005.
20. Implementation of the USA PATRIOT Act: Sections 201, 202, 223,
of the Act that Address Criminal Wiretaps, and Section 213 of the Act
that Addresses Delayed Notice. Subcommittee on Crime, Terrorism, and
Homeland Security. May 3, 2005.
21. Protection of Lawful Commerce in Arms Act. Subcommittee on
Commercial and Administrative Law. March 15, 2005. (H.R. 800).
22. Fiscal Management Practices of the United States Commission on
Civil Rights. Subcommittee on the Constitution. March 17, 2005.
23. October 2005 Statutory Deadline for Visa Waiver Program
Countries to Produce Security Passports: Why it Matters to Homeland
Security. Subcommittee on Immigration, Border Security, and Claims.
April 21, 2005.
24. Patent Act of 2005. Subcommittee on Courts, the Internet, and
Intellectual Property. June 9, 2005. (H.R. 2795).
25. Public Performance Rights Organizations. Subcommittee on
Courts, the Internet, and Intellectual Property. May 11, 2005.
26. Industry Competition and Consolidation: The Telecom Marketplace
Nine Years After the Telecom Act. Full Committee. April 20, 2005.
27. Economic Development and Dormant Commerce Clause: The Lessons
of Cuno v. Daimler Chrysler and Its Effect on State Taxation Affecting
Interstate Commerce. Subcommittee on Commercial and Administrative Law
jointly with the Subcommittee on the Constitution. May 24, 2005.
28. Copyright Office Views on Music Licensing Reform. Subcommittee
on Courts, the Internet, and Intellectual Property. June 21, 2005.
29. Reauthorization of the USA PATRIOT Act (Part 2). Full
Committee. June 10, 2005.
30. Child Abuse and Neglect Database Act; Dru Sjodin National Sex
Offender Public Database Act of 2005; Child Predator Act of 2005;
Jessica Lunsford Act; Sex Offender Registration and Notification Act;
Save Our Children: Stop the Violent Predators Against Children DNA Act
of 2005; DNA Fingerprinting Act of 2005; Amie Zyla Act of 2005. (H.R.
764, H.R. 95, H.R. 1355, H.R. 1505, H.R. 2423, H.R. 244, H.R. 2696,
H.R. 2797).
31. Protecting Our Nation's Children from Sexual Predators and
Violent Criminals. Subcommittee on Crime, Terrorism, and Homeland
Security. June 9, 2005.
32. New ``Dual Missions'' of the Immigration Enforcement Agencies.
Subcommittee on Immigration, Border Security, and Claims. May 5, 2005.
33. Protection Against Sexual Exploitation of Children Act of 2005;
and Prevention and Deterrence of Crimes Against Children Act of 2005.
Subcommittee on Crime, Terrorism, and Homeland Security. June 7, 2005.
(H.R. 2318, H.R. 2388).
34. Intellectual Property Theft in China and Russia. Subcommittee
on Courts, the Internet, and Intellectual Property. May 17, 2005.
35. Illegal Immigration Enforcement and Social Security Protection
Act of 2005. Subcommittee on Immigration, Border Security, and Claims.
(H.R. 98).
36. Responding to Organized Crimes Against Manufacturers and
Retailers. Subcommittee on Crime, Terrorism, Homeland Security. March
17, 2005.
37. Can Congress Create a Race-Based Government? The
Constitutionality of H.R. 309/S. 147. Subcommittee on the Constitution.
July 19, 2005.
38. Department of Homeland Security to Examine the Security of the
Nation's Seaports and Cargo Entering Those Ports. Subcommittee on
Crime, Terrorism, and Homeland Security. March 15, 2005.
39. New Jobs in Recession and Recovery: Who are Getting Them and
Who are Not? Subcommittee on Immigration, Border Security, and Claims.
May 4, 2005.
40. Appropriate Role of Foreign Judgements in the Interpretation of
the Constitution of the United States. Subcommittee on the
Constitution. July 19, 2005. (H. Res. 97).
41. Defending America's Most Vulnerable: Safe Access to Drug
Treatment and Child Protection Act of 2005. Subcommittee on Crime,
Terrorism, and Homeland Security. April 12, 2005. (H.R. 1528).
42. Mutual Fund Trading Abuses. Subcommittee on Commercial and
Administrative Law. June 7, 2005.
43. Federal Consent Decree Fairness Act. Subcommittee on Courts,
the Internet, and Intellectual Property. June 21, 2005. (H.R. 1229).
44. Secure Access to Justice and Court Protection Act of 2005.
Subcommittee on Crime, Terrorism, and Homeland Security. April 26,
2005. (H.R. 1751).
45. U.S. Department of Justice Civil Rights Division: A Review of
the Civil Rights Division for the purpose of the Reauthorization of the
U.S. Department of Justice. Subcommittee on the Constitution. March 10,
2005.
46. Terrorist Death Penalty Enhancement Act of 2005; and
Streamlined Procedures Act of 2005. Subcommittee on Crime, Terrorism,
and Homeland Security. June 30, 2005. (H.R. 3060, H.R. 3035).
47. Federal Prison Industries Competition in Contracting Act of
2005. Subcommittee on Courts, the Internet, and Intellectual Property.
July 1, 2005. (H.R. 2965).
48. Review of U.S. Patent and Trademark Office Operations,
including Analysis of General Accounting Office, Inspector General, and
National Academy of Public Administration Reports. Subcommittee on
Courts, the Internet, and Intellectual Property. September 8, 2005.
49. The Diversity Visa Program. Subcommittee on Immigration, Border
Security, and Claims. June 15, 2005.
50. Gang Deterrence and Community Protection Act. Subcommittee on
Crime, Terrorism, and Homeland Security. April 5, 2005.
51. Lack of Worksite Enforcement & Employer Sanctions. Subcommittee
on Immigration, Border Security, and Claims. June 21, 2005.
52. Alien Gang Removal Act. Subcommittee on immigration, Border
Security, and Claims. June 28, 2005. (H.R. 2933).
53. An Amendment in the Nature of a Substitute to H.R. 2795, the
``Patent Act of 2005''. Subcommittee on Courts, the Internet, and
Intellectual Property. September 15, 2005.
54. Immigration Removal Procedures Implemented in the Aftermath of
September 11th Attacks. Subcommittee on Immigration, Border Security,
and Claims. June 30, 2005.
55. Implementation of the Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005. Subcommittee on Commercial and Administrative
Law. July 26, 2005.
56. Reducing Peer-to-Peer (P2P) Piracy on University Campuses: A
Progress Update. Subcommittee on Courts, the Internet, and Intellectual
Property. September 22, 2005.
57. Pain of the Unborn. Subcommittee on the Constitution. November
1, 2005.
58. Sources and Methods of Foreign Nationals Engaged in Economic
and Military Espionage. Subcommittee on Immigration, Border Security,
and Claims. September 15, 2005.
59. Improving Federal Court Adjudication of Patent Cases.
Subcommittee on Courts, the Internet, and Intellectual Property.
October 6, 2005.
60. Supreme Court's Kelo Decision and Potential Congressional
Responses. Subcommittee on the Constitution. September 22, 2005.
61. Methamphetamine Epidemic Elimination Act. Subcommittee on
Crime, Terrorism, and Homeland Security. September 27, 2005. (H.R.
3889).
62. Business Activity Tax Simplification. Subcommittee on
Commercial and Administrative Law. September 27, 2005. (H.R. 1956)
63. Dual Citizenship, Birthright Citizenship, and the Meaning of
Sovereignty. Subcommittee on Immigration, Border Security, and Claims.
September 29, 2005.
64. To Prevent Certain Discriminatory Taxation of Natural Gas
Pipeline Property. (H.R. 1369).
65. Offender Re-entry: What is Needed to Provide Offenders with a
Real Second Chance? Subcommittee on Crime, Terrorism, and Homeland
Security. November 3, 2005.
66. Second Chance Act of 2005. (Part 1). Subcommittee on Crime,
Terrorism, and Homeland Security. November 3, 2005. (H.R. 1704).
67. Federal Courts Jurisdiction Clarification Act. Subcommittee on
Courts, the Internet, and Intellectual Property. November 15, 2005.
68. Voting Rights Act: An Examination of the Scope and Criteria for
Coverage Under the Special Provisions of the Act. Subcommittee on the
Constitution. October 20, 2005.
69. Voting Rights Act: Section 5-Preclearance Standards.
Subcommittee on the Constitution. November 1, 2005.
70. To Examine the Impact and Effectiveness of the Voting Rights
Act. Subcommittee on the Constitution. October 18, 2005.
71. Administrative Law, Process and Procedure Project. Subcommittee
on Commercial and Administrative Law. November 1, 2005.
72. To amend Title 4 of the United States Code to clarify the
treatment of self-employment for purposes of the limitation on State
taxation of retirement. Subcommittee on Commercial and Administrative
Law. December 13, 2005. (H.R. 4019).
73. How Illegal Immigration Impacts Constituencies: Perspectives
from Members of Congress (Part 2). Subcommittee on Immigration, Border
Security, and Claims. November 17, 2005.
74. Voting Rights Act: Section 5-The Judicial Evolution of the
Retrogression Standard. Subcommittee on the Constitution. November 9,
2005.
75. Voting Rights Act: The Continuing Need for Section 5.
Subcommittee on the Constitution. October 25, 2005.
76. How Illegal Immigration Impacts Constituencies: Perspectives
from Members of Congress (Part 1). Subcommittee on Immigration, Border
Security, and Claims. November 10, 2005.
77. Voting Rights Act: Sections 6 and 8-The Federal Examiner and
Observer Program. Subcommittee on the Constitution. November 15, 2005.
Subcommittee on the Constitution. November 15, 2005.
78. Voting Rights Act: Section 203-Bilingual Election Requirements
(Part 2). Subcommittee on the Constitution. November 9, 2005.
79. Voting Rights Act: Section 5 of the Act-History, Scope, and
Purpose. Subcommittee on the Constitution. October 25, 2005.
80. Content Protection in the Digital Age: The Broadcast Flag,
High-Definition Radio, and the Analog Hole. Subcommittee on Courts, the
Internet, and Intellectual Property. November 3, 2005.
81. Olympic Family-Functional or Dysfunctional? Subcommittee on
Immigration, Border Security, and Claims. June 9, 2005.
82. Streamlined Procedures Act of 2005. Subcommittee on Crime,
Terrorism, and Homeland Security. November 10, 2005. (H.R. 3035).
83. Voting Rights Act: Section 203-Bilingual Election Requirements
(Part 1). Subcommittee on the Constitution. November 8, 2005.
84. Scope and Myths of Roe V. Wade. Subcommittee on the
Constitution. March 2, 2006.
85. Outgunned and Outmanned: Local Law Enforcement Confronts
Violence Along the Southern Border. Subcommittee on Immigration, Border
Security, and Claims jointly with the Subcommittee on Crime, Terrorism,
and Homeland Security. March 2, 2006.
86. Second Chance Act of 2005. (Part 2): An Examination of Drug
Treatment Programs Needed to Ensure Successful Re-entry. February 8,
2006. (H.R. 1704)
87. Victims and the Criminal Justice System: How to Protect,
Compensate, and Vindicate the Interests of Victims. Subcommittee on
Crime, Terrorism, and Homeland Security. February 16, 2006.
88. International IPR Report Card: Assessing U.S. Government and
Industry Efforts to Enhance Chinese and Russian Enforcement of
Intellectual Property Rights. Subcommittee on Courts, the Internet, and
Intellectual Property. December 7, 2005.
89. A Bill to Require Any Federal State Contract to Recognize Any
Notarization Made by a Notary Public Licensed by a State Other than the
State Where the Court is Located when Such Notarization Occurs In or
Affects Interstate Commerce. Subcommittee on Courts, the Internet, and
Intellectual Property. March 9, 2006. (H.R. 1458).
90. Weak Bilateral Law Enforcement Presence at the U.S.-Mexico
Border: Territorial Integrity and Safety Issues for American Citizens.
Subcommittee on Immigration, Border Security, and Claims jointly with
the Subcommittee on Crime, Terrorism, and Homeland Security. November
17, 2005.
91. Workplace Goods Job Growth and Competitiveness Act of 2005.
Subcommittee on Commercial and Administrative Law. March 14, 2006.
(H.R. 3509).
92. Remedies for Small Copyright Claims. Subcommittee on Courts,
the Internet, and Intellectual Property. March 29, 2006.
93. Death Penalty Reform Act of 2006. Subcommittee on Crime,
Terrorism, and Homeland Security. March 30, 2006. (H.R. 5040).
94. Report on Orphan Works by the Copyright Office. Subcommittee on
Courts, the Internet, and Intellectual Property. March 8, 2006.
95. Should Congress Raise the H1-B Cap? Subcommittee on
Immigration, Border Security, and Claims. March 30, 2006.
96. Lobbying Accountability and Transparency Act of 2006.
Subcommittee on the Constitution. April 4, 2006. (H.R. 4975).
97. 10th Anniversary of the Congressional Review Act. Subcommittee
on Commercial and Administrative Law. March 30, 2006.
98. Personal Information Acquired by the Government from
Information Resellers: Is there Need for Improvement? Subcommittee on
Commercial and Administrative Law jointly with the Subcommittee on the
Constitution. April 4, 2006.
99. Patent Quality Enhancement in the Information-Based Economy.
Subcommittee on Courts, the Internet, and Intellectual Property. April
5, 2006.
100. Patent Harmonization. Subcommittee on Courts, the Internet,
and Intellectual Property. 2006.
101. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting
Rights Act Reauthorization and Amendments Act. (Part 1). Subcommittee
on the Constitution. May 5, 2006. (H.R. 9).
102. The Constitutional Line Item Veto. Subcommittee on the
Constitution. April 27, 2006.
103. Voting Rights Act: Evidence of Continued Need. (Volumes I to
IV). Subcommittee on the Constitution. March 8, 2006.
104. Patent Trolls: Fact or Fiction? Subcommittee on Courts, The
Internet, and Intellectual Property. June 15, 2006.
105. Private Property Rights Implementation Act of 2005.
Subcommittee on the Constitution. June 8, 2006. (H.R. 1772).
106. Cyber-Security Enhancement and Consumer Data Protection Act of
2006. Subcommittee on Crime, Terrorism, and Homeland Security. May 11,
2006. (H.R. 5318).
107. Firearm Commerce Modernization Act; and NICS Improvement Act
of 2005. Subcommittee on Crime, Terrorism, and Homeland Security. May
3, 2006. (H.R. 1384, H.R. 1415).
108. Discussion Draft of the Section 115 Reform Act (SIRA) of 2006.
Subcommittee on Courts, the Internet, and Intellectual Property. May
16, 2006.
109. Network Neutrality: Competition, Innovation, and
Nondiscriminatory Access. Taskforce on Telecom and Antitrust. April 25,
2006.
110. Energy Employees Occupational Illness Compensation Program
Act: Are We Fulfilling the Promise We Made to these Cold War Veterans
When We Created the Program? (Part 1). Subcommittee on Immigration,
Border Security, and Claims. March 1, 2006.
111. Physicians for Underserved Areas Act. Subcommittee on
Immigration, Border Security, and Claims. May 18, 2006. (H.R. 4997)
112. White Collar Enforcement: Attorney-Client Privilege and
Corporate Waivers. Subcommittee on Crime, Terrorism, and Homeland
Security. March 7, 2006.
113. Firearms Corrections and Improvement Act. Subcommittee on
Crime, Terrorism, and Homeland Security. March 28, 2006.
114. Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE):
Reforming Licensing and Enforcement Authorities. Subcommittee on Crime,
Terrorism, and Homeland Security. March 28, 2006.
115. Animal Fighting Prohibition Enforcement Act of 2005.
Subcommittee on Crime, Terrorism, and Homeland Security. May 18, 2006.
(H.R. 817).
116. Criminal Restitution Improvement Act of 2006. Subcommittee on
Crime, Terrorism, and Homeland Security. June 13, 2006. (H.R. 5673).
117. The Need to Implement WHTI to Protect U.S. Homeland Security.
Subcommittee on Immigration, Border Security, and Claims. June 8, 2006.
118. Public Expression of Religion Act of 2005. Subcommittee on the
Constitution. June 22, 2006. (H.R. 2679).
119. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting
Rights Act Reauthorization and Amendments Act (Part 2). Subcommittee on
the Constitution. May 4, 2006. (H.R. 9).
120. State Taxation of Interstate Telecommunications Services.
Subcommittee on Commercial and Administrative Law. June 13, 2006.
121. United States v. Booker: One Year Later--Chaos or Status Quo?
Subcommittee on Crime, Terrorism, and Homeland Security. March 16,
2006.
122. Reckless Justice: Did the Saturday Night Raid of Congress
Trample the Constitution? Committee on the Judiciary. May 30, 2006.
123. Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE):
Gun Show Enforcement (Part 1 & 2). Subcommittee on Crime, Terrorism,
and Homeland Security. February 15, 28, 2006.
124. Judicial Transparency and Ethics Enhancement Act of 2006.
Subcommittee on Crime, Terrorism, and Homeland Security. June 26, 2006.
(H.R. 5219).
125. Animal Enterprise Terrorism Act. Subcommittee on Crime,
Terrorism, and Homeland Security. May 23, 2006. (H.R. 4239).
126. Equal Access to Justice Reform Act of 2005. Subcommittee on
Courts, the Internet, and Intellectual Property. May 23, 2006. (H.R.
435).
127. Should We Embrace the Senate's Grant of Amnesty to Millions of
Illegal Aliens and Repeat the Mistakes of the Immigration Reform and
Control Act of 1986? Subcommittee on Immigration, Border Security, and
Claims. July 18, 2006.
128. Internet Gambling Prohibition Act of 2006. Subcommittee on
Crime, Terrorism, and Homeland Security. April 5, 2006. (H.R. 4777).
129. Reid-Kennedy Bill: The Effect on American Workers' Wages and
Employment Opportunities. Committee on the Judiciary. August 29, 2006.
130. Whether Attempted Implementation of the Reid-Kennedy
Immigration Bill Will Result in an Administrative and National Security
Nightmare. Subcommittee on Immigration, Border Security, and Claims.
July 27, 2006.
131. Electronic Surveillance Modernization Act. Subcommittee on
Crime, Terrorism, and Homeland Security. September 12, 2006. (H.R.
5825).
132. Reauthorization of the U.S. Department of Justice: Executive
Office for U.S. Attorneys, Civil Division, Environment and Natural
Resources Division, Executive Office for U.S. Trustees, and Office of
the Solicitor General. Subcommittee on Commercial and Administrative
Law. April 26, 2006.
133. The 60th Anniversary of the Administrative Procedure Act:
Where Do We Go From Here? Subcommittee on Commercial and Administrative
Law. July 25, 2006.
134. Regulatory Flexibility Improvements Act. Subcommittee on
Commercial and Administrative Law. July 20, 2006.
135. How Does Illegal Immigration Impact American Taxpayers and
Will the Reid-Kennedy Amnesty Worsen the Blow? Committee on the
Judiciary. August 2, 2006.
136. Legislative Proposals to Update the Foreign Intelligence
Surveillance Act (FISA). Subcommittee on Crime, Terrorism, and Homeland
Security. September 9, 2006. (H.R. 4976, H.R. 5113, H.R. 5371, H.R.
5825, S. 2453, S. 2455).
137. United States Department of Justice. Committee on the
Judiciary. April 6, 2006.
138. A Bill to Provide Protection for Fashion Design. Subcommittee
on Courts, the Internet, and Intellectual Property. July 27, 2006.
(H.R. 5005).
139. Energy Employees Occupational Illness Compensation Program
Act: Are We Fulfilling the Promise We Made to These Cold War Veterans
When We Created the Program? (Part III). Subcommittee on Immigration,
Border Security, and Claims. July 20, 25, 2006.
140. District of Columbia Fair and Equal House Voting Rights Act of
2006. Subcommittee on the Constitution. September 14, 2006. (H.R.
5388).
141. Impeaching Manuel L. Real, a Judge of the United States
District Court for the Central District of California, for High Crimes
and Misdemeanors. Subcommittee on Courts, the Internet, and
Intellectual Property. September 21, 2006. (H.Res. 916).
142. Is the Reid-Kennedy Bill a Repeat of the Failed Amnesty of
1986? Committee on the Judiciary. September 1, 2006.
143. Nonadmitted and Reinsurance Reform Act of 2006. Subcommittee
on Commercial and Administrative Law. September 19, 2006. (H.R. 5637).
144. Implementation of the Crime Victims' Rights Provisions of the
Justice for All Act. Subcommittee on the Constitution. June 21, 2006.
145. Legal Services Corporation: A Review of Leasing Choices and
Landlord Relations. Subcommittee on Commercial and Administrative Law.
June 28, 2006.
146. Americans with Disabilities Act: Sixteen Years Later.
Subcommittee on the Constitution. September 13, 2006.
147. Should Mexico Hold Veto Power Over U.S. Border Security
Decisions? Committee on the Judiciary. August 17, 2006.
148. Need for European Assistance to Colombia for the Fight Against
Illicit Drugs. Subcommittee on Crime, Terrorism, and Homeland Security
jointly with the Subcommittee on the Western Hemisphere, Committee on
International Relations. September 21, 2006.
149. Is the Labor Department Doing Enough to Protect U.S. Workers?
Subcommittee on Immigration, Border Security, and Claims. June 22,
2006.
150. A Bill to Amend Title 35, United States Code, to Conform
Certain Filing Provisions Within the Patent and Trademark Office.
Subcommittee on Courts, the Internet, and Intellectual Property.
September 14, 2006. (H.R. 5120).
151. Energy Employees Occupational Illness Compensation Program
Act: Are We Fulfilling the Promise We Made to These Cold War Veterans
When We Created the Program? (Part II). Subcommittee on Immigration,
Border Security, and Claims. May 4, 2006.
152. Administrative Law, Process and Procedure Project for the 21st
Century. Subcommittee on Commercial and Administrative Law. November
14, 2006.
153. Reid-Kennedy Bill's Amnesty: Impacts on Taxpayers, Fundamental
Fairness and the Rule of Law. Committee on the Judiciary. August 24,
2006.
154. Preventing Harassment Through Outbound Number Enforcement
(PHONE) Act. Subcommittee on Crime, Terrorism, and Homeland Security.
November 15, 2006. (H.R. 5304).
155. Privacy in the Hands of the Government: The Privacy Officer
for the Department of Homeland Security, and the Privacy Officer for
the Department of Justice. Subcommittee on Commercial and
Administrative Law. May 17, 2006.
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr.,
Wisconsin, Chairman \1\
JOHN CONYERS, Jr., Michigan \2\ HENRY J. HYDE, Illinois
HOWARD L. BERMAN, California HOWARD COBLE, North Carolina
RICK BOUCHER, Virginia LAMAR S. SMITH, Texas
JERROLD NADLER, New York ELTON GALLEGLY, California
ROBERT C. SCOTT, Virginia BOB GOODLATTE, Virginia
MELVIN L. WATT, North Carolina STEVE CHABOT, Ohio
ZOE LOFGREN, California DANIEL E. LUNGREN, California
SHEILA JACKSON LEE, Texas WILLIAM L. JENKINS, Tennessee
MAXINE WATERS, California CHRIS CANNON, Utah
MARTIN T. MEEHAN, Massachusetts SPENCER BACHUS, Alabama
WILLIAM DELAHUNT, Massachusetts JOHN N. HOSTETTLER, Indiana
ROBERT WEXLER, Florida BOB INGLIS, South Carolina
ANTHONY D. WEINER, New York MARK GREEN, Wisconsin
ADAM B. SCHIFF, California RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL E. ISSA, California
CHRIS VAN HOLLEN, Maryland JEFF FLAKE, Arizona
DEBBIE WASSERMAN SCHULTZ, Florida \3\MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
DARRELL E. ISSA, California
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
\1\ F. James Sensenbrenner, Jr. elected to the Committee as Chairman
pursuant to House Resolution 32, approved by the House January 6, 2005.
Republican Members elected to the Committee pursuant to House
Resolution 48, approved by the House January 26, 2005.
\2\ John Conyers, Jr. elected to the Committee as ranking minority
Member pursuant to House Resolution 33, approved by the House January
6, 2005.
Democratic Members elected to the Committee pursuant to House
Resolution 49, approved by the House January 26, 2005.
\3\ Debbie Wasserman Schultz elected to the Committee pursuant to House
Resolution 307, approved June 8, 2005.
Tabulation of Activity on Legislation Held at the Full Committee
Legislation held at the full Committee........................... 87
Legislation failed to be ordered reported to the House........... 4
Legislation reported favorably to the House...................... 36
Legislation reported adversely to the House...................... 5
Legislation discharged from the Committee........................ 7
Legislation pending in the House................................. 16
Legislation failed passage by the House.......................... 4
Legislation passed by the House.................................. 58
Legislation pending in the Senate................................ 24
Legislation enacted into public law as part of another measure... 1
Legislation enacted into public law.............................. 19
House concurrent resolutions approved............................ 3
House resolutions approved....................................... 8
Legislation on which hearings were held.......................... 0
Days of legislative hearings..................................... 0
Days of oversight hearings....................................... 11
Full Committee Activities
During the 109th Congress the full Committee on the
Judiciary Committee maintained its original jurisdiction with
respect to a number of legislative and oversight matters. This
included exclusive jurisdiction over antitrust and liability
issues, including medical malpractice and product liability,
legal reform generally, and such other matters as determined by
the Chairman.
Legislative Activities
ANTITRUST
The Committee on the Judiciary has jurisdiction over all
laws relating to unlawful restraints of commerce and trade.
United States antitrust laws are tailored to ensure the
competitive functioning of the marketplace--i.e. competition in
the marketplace and not the protection of any individual
competitor. There are two principal antitrust laws in the
United States--the Sherman Act and the Clayton Act. Both are
enforceable by the Antitrust Division of the Department of
Justice (DOJ), the Federal Trade Commission (FTC), and private
persons. Other federal agencies have authority to examine
competitive aspects of market transactions within their
jurisdiction. During the 109th Congress, the full Judiciary
Committee retained original jurisdiction over antitrust
legislative and oversight matters.
H.R. 5417, the Internet Freedom and Nondiscrimination Act of 2006
Summary.--H.R. 5417, the ``Internet Freedom and
Nondiscrimination Act of 2006,'' preserves an antitrust remedy
for anticompetitive and discriminatory practices by broadband
service providers. As reported by the Committee on Energy and
Commerce, H.R. 5252, the ``COPE'' Act, vests ``exclusive''
authority in the Federal Communications Commission to
adjudicate complaints alleging violations of network neutrality
principles. This exclusive grant may be interpreted to displace
the application of the antitrust laws to remedy anticompetitive
and discriminatory misconduct by broadband network providers.
H.R. 5417 reasserts an antitrust remedy for anticompetitive
conduct in which the broadband network provider: (1) fails to
provide network services on reasonable and nondiscriminatory
terms; (2) refuses to interconnect with the facilities of other
network providers on a reasonable and nondiscriminatory basis;
(3) blocks, impairs or discriminates against a user's ability
to receive or offer lawful content; (4) prohibits a user from
attaching a device to the network that does not damage or
degrade the network; or (5) fails to disclose to users, in
plain terms, the conditions of the broadband service. The
legislation expressly permits a broadband network provider to
take steps to manage the functioning and security of its
network, to give priority to emergency communications, and to
take steps to prevent violations of Federal and State law, or
to comply with a court order. This legislation is not intended
to diminish the ability of a broadband network provider to take
any otherwise lawful actions to protect copyrighted works
against infringement or to limit infringement on the provider's
broadband network. In addition, the legislation does not
represent a ``regulatory'' imposition on broadband network
providers. Rather, the legislation reaffirms an antitrust
remedy for anticompetitive conduct by broadband network
providers in order to ensure that the dominant market power of
broadband network providers is not employed in a manner that
assaults the pro-competitive, nondiscriminatory architecture
that has been a defining feature of the Internet's success.
Legislative History.--H.R. 5417 was introduced by Chairman
Sensenbrenner on May 18, 2006, and referred exclusively to the
House Judiciary Committee. On May 25, 2006, the Full Committee
marked up H.R. 5417. The bill was ordered reported, as amended,
by the Yeas and Nays: 20-13 (H. Rept. 109-541). The substance
of H.R. 5417 was offered as an amendment to H.R. 5252, the
``COPE'' Act, during its consideration by the Committee on
Rules, but was not made in order.
H.R. 5830, the Wright Amendment Reform Act
Summary.--H.R. 5830 implements a compromise agreement
reached by: the City of Dallas, Texas; the City of Fort Worth,
Texas; American Airlines; Southwest Airlines; and Dallas-Fort
Worth International Airport (DFW) on July 11, 2006, regarding
air service at Dallas Love Field. The Judiciary Committee
sought and received a sequential referral of the legislation
pursuant to its rule XI(1)(1)(16) jurisdiction over the
``protection of trade and commerce against unlawful restraints
and monopolies.''
As introduced, section 5 of the legislation provides that
the agreement shall be deemed to comply in all respects with
the parties obligations under title 49 United States Code, and
any competition laws.'' While not explicitly defined in the
legislation, ``competition laws'' encompass those related to
the protections of trade against unlawful restraints, price
discrimination, price fixing, abuse of market for
anticompetitive purposes, and monopolies. Principle competition
laws in the United States include the Sherman Act of 1890,
Clayton Act of 1914, and Federal Trade Commission Act.
Competition-related aspects of the agreement to which section
5(a) of this legislation pertains are presently being litigated
in Federal district court.\2\ As introduced, section 6 of the
legislation provides the Department of Transportation exclusive
authority to review actions taken to implement the agreement
``with respect to any Federal competition laws . . . that may
otherwise apply.'' This provision would have stripped authority
from Federal antitrust enforcement agencies (Department of
Justice and Federal Trade Commission) to review competitive
aspects of the agreement.
---------------------------------------------------------------------------
\2\ See Love Terminal Partnership, L.P. and Virginia Aerospace v.
City of Dallas, et. al, Federal District Court for the Northern
District of Texas (306-CV1279-D).
---------------------------------------------------------------------------
To ensure that this agreement is not exempt from antitrust
scrutiny, the Committee adopted by voice vote an amendment
offered by Chairman Sensenbrenner (with the support of Ranking
Member Conyers) to strike the antitrust exemption contained in
section 5. The amendment also strikes language in section 6 of
the underlying bill providing the Department of Transportation
exclusive authority to review or enforce competition-related
aspects of the agreement. Finally, the amendment adopted by the
Committee contained a clear savings clause to preserve an
antitrust remedy for competitive violations stemming from the
July 11, 2006 agreement and the implementation of this
legislation. It is the view of the Committee that competitive
aspects of the July 11, 2006 agreement must be assessed in
accordance with Federal antitrust law and established antitrust
principles, and that any perceived or actual conflict between
the July 11, 2006 and the antitrust laws must be resolved in
favor of the antitrust laws.
Legislative History.--H.R. 5830 was introduced by
Representative Don Young (R-AK) on July 18, 2006. On July 26,
2006, the legislation was sequentially referred to the House
Judiciary Committee. The Committee met on September 13, 2006 to
mark up the bill. An antitrust amendment offered by Chairman
Sensenbrenner and Ranking Member Conyers was adopted by voice
vote. The bill was reported favorably, as amended (H. Rept.
109-600). No further action was taken on H.R. 5830, however
it's companion bill, S. 3661, became public law on October 13,
2006 (Pub. L. No. 109-352).
OVERSIGHT HEARINGS BY THE COMMITTEE ON JUDICIARY TASK FORCE ON TELECOM
AND ANTITRUST
Network Neutrality: Competition, Innovation, and Nondiscriminatory
Access (Serial No. 109-109)
Over the last decade, the Internet has revolutionized the
manner in which Americans access and transmit a broad range of
information and consume goods. The advent of high speed
(broadband) Internet access has dramatically enhanced the
ability of Americans to access this medium. Many credit the
rapid rise of the Internet to the open architecture that
defines it. There is broad recognition that investment in a
diverse, faster, and more sophisticated Internet will further
expand the ways in which American live, work, and play.\3\
---------------------------------------------------------------------------
\3\ Remarks of Michael K. Powell, Chairman, Federal Communications
Commission, at the Silicon Flatirons Symposium on ``The Digital
Broadband Migration: Toward a Regulatory Regime for the Internet Age,''
University of Colorado School of Law, February 8, 2004.
---------------------------------------------------------------------------
The Committee on the Judiciary and the antitrust laws have
played a critical role in fostering competition in the
telecommunications industry. Recent actions taken by the FCC
and Supreme Court, coupled with increased consolidation of
network providers, have heightened the risk of anticompetitive
behavior in the telecom marketplace. Firms that control
networks that provide access to the Internet may exercise
market power to discriminate against rival services or
competing technologies, or limit the ability of consumers to
access online information or services in a neutral manner.
Abuse of this market power may undermine the open architecture
that has been a key feature of the Internet's success and
utility. The basis of the hearing was to examine the concept of
``net neutrality'' and assess whether concerns about
discriminatory access to the Internet are substantive or merely
speculative. The hearing also examined whether providers of
Internet service engage in discriminatory conduct and what
incentives exist for a provider to utilize power in such a
manner. Finally, the hearing examined the state of competition
in the broadband marketplace, its effect on net neutrality, the
impact of recent regulatory decisions upon broadband Internet
providers, the sufficiency of existing regulatory authority to
protect network neutrality, and proposals to strengthen legal
safeguards to deter competitive misconduct. Moreover, the
hearing helped establish the legislative record demonstrating
the need for H.R. 5417.
The following witnesses appeared and submitted a written
statement for the record: Mr. Paul Misener, Vice President of
Global Public Policy, Amazon.com; Mr. Earl W. Comstock,
President and CEO, COMPTEL; Mr. Walter B. McCormick, President
and CEO, United States Telecom Association; and Mr. Timothy Wu,
Professor of Law, Columbia Law School.
ANTITRUST OVERSIGHT HEARINGS BY THE FULL COMMITTEE
Industry Competition and Consolidation: The Telecom Marketplace Nine
Years After the Telecom Act (Serial No. 109-26)
Since 1957, the Committee on the Judiciary has played a
central role in promoting competition in the telecom industry.
The Judiciary Committee's involvement in promoting competition
in the telecommunications marketplace dates back nearly a half
century when the Committee held oversight hearings to examine
the monopoly power that AT&T wielded because of its control of
the local exchange and the Department of Justice's efforts to
limit that power through antitrust enforcement.\4\
---------------------------------------------------------------------------
\4\ See The Consent Decree Program of the Department of Justice;
Hearings Before the Subcommittee on antitrust of the House Committee on
the Judiciary, 85th Cong. (1957 and 1958); Report of the antitrust
Subcommittee on the Consent Decree Program of the Department of
Justice, 86th Cong. (1959).
---------------------------------------------------------------------------
Section 1 of the Sherman Act of 1890 prohibits ``every
contract, combination . . . or conspiracy, in restraint of
trade or commerce among the several States.'' \5\ Section 2 of
the Sherman Act provides that it is a violation of the
antitrust laws to ``monopolize, or attempt to monopolize, or
combine or conspire with any other person or persons, to
monopolize any part of the trade or commerce among the several
States, or with foreign nations.'' \6\ The principled
application of the antitrust laws has served as the primary
catalyst for the structural changes that have produced
competitive gains and expanded consumer choice in the
telecommunications field. The legal basis for the elimination
of Ma Bell's national telephone monopoly was predicated in the
antitrust laws. While the former AT&T had operated in a highly-
intensive Federal and State regulatory regime for decades, the
government relied on the antitrust laws to provide the robust
pro-competitive remedy that regulation could not and does not
alone provide. Specifically, the Justice Department
successfully alleged that AT&T unfairly limited competition
through exclusionary conduct in violation of the Sherman Act.
This anticompetitive conduct was manifested by ``manipulation
of the terms and conditions under which competitors are
permitted to interconnect with AT&T's existing services and
facilities, including those of the local exchange operators.''
\7\ The Department also successfully alleged that AT&T
``imposed a number of cumbersome and unnecessary technical and
operational practices on its competitors which increased their
costs and lowered the quality of their service, in marked
contrast to the efficient interconnection arrangements made
available to AT&T's own . . . connections.'' \8\ In the early
1990s, the Committee conducted several legislative and
oversight hearings concerning the market dominance exercised by
the remnants of the former AT&T monopoly, and in 1995, the
Committee conducted hearings to examine the Justice
Department's responsibility to aggressively monitor competition
in this field.
---------------------------------------------------------------------------
\5\ 15 U.S.C. Sec. 1.
\6\ 15 U.S.C. Sec. 2.
\7\ See Plaintiff's Memorandum in Opposition to Defendant's Motion
for Involuntary Dismissal Under Rule 41(b), United States v. AT&T Co.,
No. 74-1698 (D.D.C., filed Aug. 16, 1981).
\8\ Id. at 79.
---------------------------------------------------------------------------
The failure of the 1982 consent decree to produce robust
competition lent impetus to congressional passage of
legislation that was comprehensive and deregulatory in scope.
The findings section of the 1996 Act states that its purpose is
``to promote competition and reduce regulation in order to
secure lower prices and higher quality services for American
telecommunications consumers and encourage the rapid growth of
telecommunications technologies.'' The 1996 Act further states
that Congress intended ``to provide for a pro-competitive . . .
national policy framework designed to accelerate rapidly
private sector deployment of advanced telecommunications and
information technologies and services to all Americans by
opening all telecommunications markets to competition.'' \9\
---------------------------------------------------------------------------
\9\ Id.
---------------------------------------------------------------------------
In order to reaffirm the centrality of the antitrust laws
in the liberalized regulatory regime established by the 1996
Act, the Judiciary Committee and Congress preserved an explicit
antitrust savings clause in the legislation. Specifically, the
antitrust savings clause contained in Sec. 601(c)(1) of the
1996 Act provided that: `` . . . Nothing in this Act or the
amendments made by this Act shall be construed to modify,
impair, or supersede the applicability of any of the antitrust
laws. . . . This Act and the amendment made by this Act shall
not be construed to modify, impair, or supersede Federal,
State, or local law unless expressly so provided in such act or
amendments.'' \10\
---------------------------------------------------------------------------
\10\ Id.
---------------------------------------------------------------------------
The legislative record surrounding consideration of the
1996 Act emphasizes the crucial role of the antitrust laws in
promoting competition and enhancing consumer welfare in the
marketplace. The Joint Explanatory Statement of the Conference
Committee stated that the antitrust savings clause: ``prevents
affected parties from asserting that the bill impliedly
preempts other laws.'' \11\ Members of both bodies affirmed
this principle. Senator Thurmond stated: ``[The 1996 Act
contains an] unequivocal antitrust savings clause that
explicitly maintains the full force of the antitrust laws in
this vital industry. Application of the antitrust laws is the
most reliable, time-tested means of ensuring that competition,
and the innovation that it fosters, can flourish to benefit
consumers and the economy.'' \12\ Ranking Member Conyers
observed: ``[t]he bill contains an all-important antitrust
savings clause which ensures that any and all
telecommunications mergers and anti-competitive activities . .
. [b]y maintaining the role of the antitrust laws, the bill
helps to ensure that the Bells cannot use their market power to
impede competition and harm consumers.'' \13\ Senator Leahy
stated: ``[r]elying on antitrust principles is vital to ensure
that the free market will work to spur competition and reduce
government involvement in the industry.'' \14\ In addition, the
FCC formally acknowledged that its regulations did not provide
the ``exclusive remedy'' for anti-competitive conduct.\15\ The
FCC expressly concluded that: ``parties have several options
for seeking relief if they believe that a carrier has violated
the standards under section 251 or 252 . . . . [W]e clarify . .
. that nothing in sections 251 and 252 or our implementing
regulations is intended to limit the ability of persons to seek
relief under the antitrust laws.'' \16\ Finally, former FCC
Chairman Powell concluded that ``[g]iven the vast resources of
many of the nation's ILECs,'' the FCC's current fining
authority of $1.2 million per offense ``is insufficient to
punish and deter violations in many instances.'' \17\
---------------------------------------------------------------------------
\11\ Joint Explanatory Statement of the Committee of Conference, S.
652, H.R. Rep. No. 104-458, S. Rep. No. 104-230, at 201 (1996)
(``Conference Report'').
\12\ 142 Cong. Rec. S687-01 (daily ed. February 1, 1996) (statement
of Sen. Thurmond).
\13\ 142 Cong. Rec. H1145-06 (daily ed. February 1, 1996)
(statement of Rep. Conyers).
\14\ 141 Cong. Rec. S18586-01 (daily ed. December 14, 1995)
(statement of Sen. Leahy).
\15\ First Report and Order, In re: Implementation of the Local
Competition Provisions in the Telecommunications Act of 1996, 11
F.C.C.R. 15499, para. 124 (Aug. 8, 1996) (R2-7-A174).
\16\ Id. at para. 129 (R2-7-A175).
\17\ Letter from Chairman Powell to House and Senate Appropriations
Committees, May 4, 2001, available at: http://www.fcc.gov/Bureaus/
Common_Carrier/News_Releases/2001/nrcc0116.html.
---------------------------------------------------------------------------
In recent years, the Committee has conducted a number of
hearings and considered legislation relating to
telecommunications competition. On May 22, 2001, the Committee
conducted a legislative hearing examining H.R. 1698, the
``American Broadband Competition Act of 2001,'' and H.R. 1697,
the ``Broadband Competition and Incentives Act of 2001.'' On
June 5, 2001, the Committee conducted a legislative hearing on
H.R. 1542, the ``Internet Freedom and Broadband Deployment Act
of 2001.'' Because the legislation did not contain the
safeguards necessary to preserve competition in the broadband
industry, the Committee adversely reported it.\18\
---------------------------------------------------------------------------
\18\ H.R. Rep. No. 107-83, Part 2.
---------------------------------------------------------------------------
On July 24, 2003, the Task Force on Antitrust conducted an
oversight hearing entitled ``Antitrust Enforcement Agencies:
The Antitrust Division of the Department of Justice and Bureau
of Competition.'' On November 19, 2003, the Committee conducted
an oversight hearing entitled ``Saving the Savings Clause:
Congressional Intent, the Trinko Case and the Role of the
Antitrust Law in Promoting Competition in the Telecom Sector.''
On July 23, 2004, the Committee conducted an oversight hearing
on ``Regulatory Aspects of Voice Over the Internet Protocol
(VoIP).''
On April 20, 2005, the Committee conducted an oversight
hearing examining ``Industry Competition and Consolidation: The
Telecom Marketplace Nine Years After the Telecom Act.'' This
hearing analyzed the current competitive landscape in the
telecom industry. Some believe the recent wave of
consolidations has created a telecom oligopoly, comprised of a
diminishing number of Baby Bells that increasingly resemble the
Ma Bell monopoly from which they were created. The Committee
was interested in what steps it could take to ensure the
vitality of competition in the telecom industry.
The following witnesses appeared and submitted a written
statement for the record: Mr. Carl J. Grivner, CEO, XO
Communications; Mr. Brian R. Moir, on behalf of eTug; Mr.
Michael Kellogg, on behalf of the U.S. Telecom Association; and
Mr. Philip Verveer, Former lead Justice Department Antitrust
Counsel in original antitrust filing against former AT&T.
Liability
BANKRUPTCY
S. 256, the Bankruptcy Abuse Prevention and Consumer Protection Act of
2005
Summary.--S. 256 consisted of a comprehensive package of
reform measures pertaining to both consumer and business
bankruptcy cases. The consumer bankruptcy reforms address the
needs of creditors as well as debtors. With respect to the
interests of creditors, the reforms responded to many of the
factors contributing to the increase in consumer bankruptcy
filings, such as lack of personal financial accountability,\19\
the proliferation of serial filings, and the absence of
effective oversight to eliminate abuse in the system. The heart
of the bill's consumer bankruptcy reforms consisted of the
implementation of an income/expense screening mechanism
(``needs-based bankruptcy relief'' or ``means testing''), which
was intended to ensure that debtors repay creditors the maximum
they can afford. S. 256 also established new eligibility
standards for consumer bankruptcy relief and included
provisions intended to crackdown on serial and abusive
bankruptcy filings. It substantially augmented the
responsibilities of those charged with administering consumer
bankruptcy cases as well as those who counsel debtors with
respect to obtaining such relief. In addition, the bill limited
the amount of homestead equity a debtor may shield from
creditors, under certain circumstances.
---------------------------------------------------------------------------
\19\ As one academic explained:
[S]hoplifting is wrong; bankruptcy is also a moral act. Bankruptcy
is a moral as well as an economic act. There is a conscious decision
not to keep one's promises. It is a decision not to reciprocate a
benefit received, a good deed done on the promise that you will
reciprocate. Promise-keeping and reciprocity are the foundation of an
economy and healthy civil society.
Bankruptcy Reform: Joint Hearing Before the Subcomm. on Commercial
and Administrative Law of the House Comm. on the Judiciary and the
Subcomm. on Administrative Oversight and the Courts of the Senate Comm.
on the Judiciary, 106th Cong. 98 (1999) (statement of Prof. Todd
Zywicki).
---------------------------------------------------------------------------
S. 256 also included various consumer protection reforms.
The bill penalized a creditor who unreasonably refuses to
negotiate a pre-bankruptcy debt repayment plan with a debtor.
It strengthened the disclosure requirements for reaffirmation
agreements (agreements by which debtors obligate themselves to
repay otherwise dischargeable debts) so that debtors would be
better informed about their rights and responsibilities. The
legislation required certain monthly credit card billing
statements to include specified explanatory statements
regarding the increased amount of interest and repayment time
associated with making minimum payments. The bill mandated
certain home equity loan and credit card solicitations to
include enhanced consumer disclosures. It also prohibited a
creditor from terminating an open end consumer credit plan
simply because the consumer has not incurred finance charges on
the account. S. 256 allowed debtors to shelter from the claims
of creditors certain education IRA plans and retirement pension
funds. It required debtors to receive credit counseling before
they can be eligible for bankruptcy relief so that they can
make an informed choice about bankruptcy, its alternatives, and
consequences. The bill also required debtors, after they have
filed for bankruptcy, to participate in financial management
instructional courses so they can hopefully avoid future
financial distress.
With respect to business bankruptcy, S. 256 included
several significant provisions intended to heighten
administrative scrutiny and judicial oversight of small
business bankruptcy cases, which often are the least likely to
reorganize successfully. In addition, it contained provisions
designed to reduce systemic risk in the financial marketplace,
the enactment of which Federal Reserve Board Chairman Alan
Greenspan described as being ``extremely important.'' \20\ The
bill included heightened protections for family farmers facing
financial distress and allowed family fishermen to qualify for
a specialized form of bankruptcy relief currently available
only to family farmers. The bill also included provisions
concerning transnational insolvencies, bankrupt health care
providers, the treatment of tax claims, and data collection. In
response to the exponential increase in bankruptcy filings, the
bill authorized the creation of 28 additional bankruptcy
judgeships.
---------------------------------------------------------------------------
\20\ Letter from Alan Greenspan, Chairman, Federal Reserve Board,
to F. James Sensenbrenner, Jr., Chairman, Committee on the Judiciary
(Sept. 3, 2002) (on file with the Subcommittee on Commercial and
Administrative Law of the House Committee on the Judiciary).
---------------------------------------------------------------------------
Legislative History.--On February 1, 2005, Senator Charles
E. Grassley (R-IA) (for himself and seven original cosponsors)
introduced S. 256, the ``Bankruptcy Abuse Prevention and
Consumer Protection Act of 2005.'' Thereafter, Chairman
Sensenbrenner (for himself and 60 original cosponsors)
introduced legislation (H.R. 685) identical to S. 256 on
February 9, 2005. S. 256, as introduced, was substantively
identical to legislation that the House passed in the prior
Congress on two separate occasions with overwhelming bipartisan
support.\21\ It was also substantively similar to a modified
version of a bankruptcy reform conference report that the House
passed in the 107th Congress by a vote of 244 to 116.\22\
---------------------------------------------------------------------------
\21\ On March 19, 2003, the House passed H.R. 975, the ``Bankruptcy
Abuse Prevention and Consumer Prevention Act of 2003,'' by a vote of
315 to 113. 149 Cong. Rec. H2099-00 (daily ed. Mar. 19, 2003).
Thereafter, the House, on January 28, 2004, passed S. 1920, as amended,
the text of which was substituted with the text of H.R. 975, as passed
by the House, by a vote of 265 to 99. 150 Cong. Rec. H218-19 (daily ed.
Jan. 28, 2004).
\22\ H. Rep. No. 107-617 (2002). The modifications consisted of
the deletion of two provisions, one dealing with unlawful protest
activities and the other authorizing additional bankruptcy judgeships.
The text of the conference report, as amended, was introduced as H.R.
5545, the ``Bankruptcy Abuse Prevention and Consumer Protection Act of
2003.'' H.R. 5545, 107th Cong. (2002). In turn, the text of H.R. 5545
was substituted as an amendment to H.R. 333. The House, thereafter,
passed H.R. 333, as amended. 148 Cong. Rec. H8876-77 (daily ed. Nov.
14, 2002).
---------------------------------------------------------------------------
Since the 105th Congress, the House had passed bankruptcy
reform legislation on eight separate occasions. In the 105th
Congress, for example, the House passed both H.R. 3150, the
``Bankruptcy Reform Act of 1998,'' and the conference report on
that bill by veto-proof margins.\23\ In the 106th Congress, the
House passed H.R. 833, the successor to H.R. 3150, by a veto-
proof margin of 313 to 108 \24\ and agreed to the conference
report \25\ by voice vote.\26\ Although the Senate subsequently
passed this legislation by a vote of 70 to 28,\27\ President
Clinton pocket-vetoed it. In the 107th Congress, the House
again registered its overwhelming support for bankruptcy reform
on two more occasions. On March 1, 2001, the House passed H.R.
333, the ``Bankruptcy Abuse Prevention and Consumer Protection
Act,'' by a vote of 306 to 108.\28\ The House thereafter passed
a modified version of the conference report on H.R. 333, as
previously noted.\29\ In the last Congress, the House passed
H.R. 975, the Bankruptcy Abuse Prevention and Consumer
Protection Act of 2003,'' by a vote of 315 to 113 and S. 1920,
which consisted of the text of H.R. 975, as passed by the
House, by a vote of 265 to 99.\30\
---------------------------------------------------------------------------
\23\ 144 Cong. Rec. H4442 (daily ed. June 10, 1998) (vote on final
passage of H.R. 3150 was 306 to 118); 144 Cong. Rec. H10239-40 (daily
ed. Oct. 9, 1998) (vote on final passage of the conference report on
H.R. 3150 was 300 to 125).
\24\ 145 Cong. Rec. H2771 (daily ed. May 5, 1999).
\25\ H. Rep. No. 106-970 (2000).
\26\ 146 Cong. Rec. H9840 (daily ed. Oct. 12, 2000).
\27\ 146 Cong. Rec. S11730 (daily ed. Dec. 7, 2000).
\28\ 147 Cong. Rec. H600-01 (daily ed. Mar. 1, 2001).
\29\ See supra note 2.
\30\ 149 Cong. Rec. H2099-00 (daily ed. Mar. 19, 2003); 150 Cong.
Rec. H218-19 (daily ed. Jan. 28, 2004).
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The Committee and the Subcommittee, beginning in the 105th
Congress, have held a total of 18 hearings on operation of the
bankruptcy system and the need for reform.\31\ Eleven of these
hearings were devoted solely to consideration of S. 256's
predecessors, H.R. 3150 (105th Congress), H.R. 833 (106th
Congress), H.R. 333 (107th Congress), and H.R. 975 (108th
Congress). Over the course of these hearings, nearly 130
witnesses, representing nearly every major constituency in the
bankruptcy community, testified. With regard to H.R. 833 alone,
testimony was received from 69 witnesses, representing 23
organizations, with additional material submitted by other
groups.
---------------------------------------------------------------------------
\31\ The dates and subject matters of these hearings are as
follows:
April 16, 1997: Hearing on the operation of the bankruptcy system
and status report from the National Bankruptcy Review Commission.
April 30, 1997: Hearing on H.R. 764, the ``Bankruptcy Amendments of
1977,'' and H.R. 120, the ``Bankruptcy Law Technical Corrections Act of
1997.''
October 9, 1997: Hearing on H.R. 2592, the ``Private Trustee Reform
Act of 1997'' and review of post-confirmation fees in chapter 11 cases.
November 13, 1997: Hearing on the Report of the National Bankruptcy
Review Commission.
February 12, 1998: Hearing on H.R. 2604, the ``Religious Liberty
and Charitable Donation Protection Act of 1997.''
March 10-11, 18-19, 1998: Hearings on H.R. 3150, the ``Bankruptcy
Reform Act of 1998.'' H.R. 3146, the ``Consumer Leanders and Borrowers
Bankruptcy Accountability Act of 1998,'' and H.R. 2500, the
``Responsible Borrower Protection Bankruptcy Act.''
March 11-12, 18-19, 1999: Hearings on H.R. 833, the ``Bankruptcy
Reform Act of 1999.''
November 2, 1999: Joint oversight hearing on additional bankruptcy
judgeship needs.
April 11, 2000: Oversight hearing on the limits on regulatory
powers under the Bankruptcy Code.
February 7-8, 2001: Hearings on H.R. 333, the ``Bankruptcy Abuse
Prevention and Consumer Protection Act of 2001.''
March 4, 2003: Hearing on H.R. 975, the ``Bankruptcy Abuse
Prevention and Consumer Protection Act of 2003'' and the need for
bankruptcy reform.
---------------------------------------------------------------------------
On February 10, 2005, the Senate Committee on the Judiciary
held a hearing on S. 256, which reviewed the reasons why the
current bankruptcy system needed reform and how this
legislation would implement those reforms.\32\ Testimony was
received from eight witnesses, including: Kenneth Beine on
behalf of the Credit Union National Association; Maria Vullo, a
partner with the New York law firm of Paul, Weiss, Rifkind,
Wharton & Garrison LLP; Malcom Bennett on behalf of the
National Multi Housing Council/National Apartment Association;
Philip Strauss on behalf of the National Child Support
Enforcement Association; Dave McCall on behalf of the United
Steel Workers of America, AFL-CIO; R. Michael Stewart Menzies,
Sr. on behalf of the Independent Community Bankers of America;
Professor Elizabeth Warren, Leo Gottlieb Professor of Law at
Harvard Law School; and Professor Todd J. Zywicki, Visiting
Professor of Law at Georgetown University Law Center. Among the
matters considered at the hearing were: (1) the adequacy of the
current bankruptcy system with respect to the detection of
fraud and abuse; (2) how abuse and fraud in the current
bankruptcy system impacted on American businesses and our
nation's citizens generally; (3) whether the legislation
adversely impacted individuals deserving of bankruptcy relief;
(4) whether the proposed reforms would assist those charged
with administrative oversight of bankruptcy cases and law
enforcement matters; and (5) whether, given current economic
circumstances, the need for comprehensive bankruptcy reform
still existed.
---------------------------------------------------------------------------
\32\ Bankruptcy Abuse Prevention and Consumer Protection Act of
2005: Hearing on S. 256 Before the Subcomm. on Administrative Oversight
and the Courts of the Senate Comm. on the Judiciary, 109th Cong.
(2005).
---------------------------------------------------------------------------
On February 17, 2005, the Senate Judiciary Committee marked
up S. 256 and ordered the bill, as amended, to be favorably
reported by a vote of 12 to 5. Over the course of the markup,
five amendments were passed. On March 10, 2005, the Senate
passed S. 256, as amended, by a vote of 74 to 25.\33\ Nearly
130 amendments were filed. Of these, 24 failed, 24 were
withdrawn, eight were passed either by vote or unanimous
consent, and the remaining were not offered.
---------------------------------------------------------------------------
\33\ 151 Cong. Rec. S2474 (daily ed. Mar. 10, 2005).
---------------------------------------------------------------------------
On March 16, 2005, the House Judiciary Committee marked up
S. 256 and ordered it favorably reported without amendment by a
recorded vote of 22 to 13. Thereafter, the House, on April 14,
2005, passed S. 256, without an amendment, by a vote of 302 to
126. President George W. Bush signed the bill into law on April
20, 2005 as Public Law 109-8.
H.R. 420--The Lawsuit Abuse Reduction Act
Summary.--H.R. 420 would restore mandatory sanctions for
filing frivolous lawsuits in violation of Rule 11 of the
Federal Rules of Civil Procedure; restore the opportunity for
monetary sanctions, including attorneys' fees and compensatory
costs, against any party making a frivolous claim; abolish Rule
11's current ``free pass'' provision (in Rule 11 since it was
amended in 1993) which allows lawyers to avoid sanctions for
making frivolous claims by simply withdrawing frivolous claims
within 21 days after a motion for sanctions has been filed;
allow Rule 11's provisions preventing frivolous lawsuits to
apply to state cases in which a state judge finds the case
substantially affects interstate commerce by threatening jobs
and economic losses to other states; and prevent forum shopping
(the notorious practice by which personal injury attorneys
cherry-pick courts and bring lawsuits in jurisdictions that
consistently hand down astronomical awards, even when the case
has little or no connection to the state or locality) by
requiring that personal injury cases be brought only where the
plaintiff resides, where the plaintiff was allegedly injured,
or where the defendant's principal place of business is
located. H.R. 420 also requires that if an attorney violates
Rule 11 three or more times in a Federal district court, the
court shall suspend that attorney from the practice of law in
that Federal district court for 1 year, or longer if the court
considers it appropriate.
Legislative History.--H.R. 420 was introduced by Rep. Lamar
Smith on January 26, 2005. On May 25, 2005, it was reported out
of the House Judiciary Committee (as amended) by a vote of 19
to 11. On October 27, 2005, H.R. 420 passed the House by a vote
of 228 to 184.
H.R. 554--The Personal Responsibility in Food Consumption Act
Summary.--H.R. 554 would generally prohibit lawsuits
against food manufacturers and sellers for obesity-related
damages, with a few exceptions. Under such exceptions, lawsuits
could still be brought against food manufacturers and sellers
for breach of express contract or express warranty, and where a
food manufacturer or seller violated a State or federal statute
applicable to the marketing, advertisement, or labeling of a
food and that violation caused someone harm. H.R. 554 also
includes provisions that require that a case be halted while
the court makes a decision regarding whether any of the
exceptions in the bill have been met and the case can go
forward, as long as halting the case does not result in
unfairness. H.R. 554 also requires that the written complaint
initiating any lawsuit that claims to meet the exceptions in
the bill spell out with particularity the claims made, the
State or federal statutes that are claimed to have been
violated, and the facts regarding the claimed injury. H.R. 554
also includes a statement making clear that the bill does not
create any new causes of action, or any new remedies.
Legislative History.--H.R. 554 was introduced by Rep.
Keller on February 2, 2005, and referred to the Subcommittee on
Commercial and Administrative Law. On May 25, 2005, it was
ordered reported (as amended) by the Judiciary Committee by a
vote of 16 to 8. On October 19, 2005, it passed the House by a
vote of 306 to 120.
H.R. 1176, the Nonprofit Athletic Organization Protection Act
Summary.--H.R. 1176, the ``Nonprofit Athletic Organization
Protection Act of 2006'' is intended to stem the growing threat
of lawsuits against organizations ranging from little leagues
to high school sports rule-making bodies. The bill exempts
nonprofit athletic organizations and their officers and
employees acting in their official capacity from liability for
harm caused by a negligent act or omission of such organization
in the adoption of rules of play for sanctioned or approved
athletic competitions or practices. The general protection
preempts inconsistent State laws but makes exceptions for
certain State laws requiring adherence to risk management and
training procedures, State general respondeat superior laws, or
State laws waiving liability limits in cases brought by any
officer of the State or local government. The language mirrors
provisions of the Volunteer Protection Act, 42 U.S.C.
Sec. 14501.
Legislative History.--Rep. Mark Souder introduced H.R. 1176
on March 8, 2005, and the bill was referred to the Committee on
the Judiciary. On March 2, 2006, the Committee on the Judiciary
held a markup on the bill and reported it favorably without
amendment by voice vote. The House of Representatives
considered the bill, as amended, under suspension of the rules
on December 5, 2006, and it failed by a recorded vote of 219 to
187.
H.R. 1871, the Volunteer Pilot Organization Protection Act
Summary.--H.R. 1871, the ``Volunteer Pilot Organization
Protection Act of 2006,'' amends the Volunteer Protection Act
to include volunteer pilots and volunteer pilot organizations
within the scope of its protections. Under present law,
nonprofit volunteer pilot organizations and their pilots that
provide life-saving medical flights without compensation are
vulnerable to costly and often frivolous litigation that
undermines the ability of these organizations to provide
critical volunteer flight services in a timely manner. In
addition, institutions that refer patients to volunteer pilot
organizations are presently subject to legal jeopardy. H.R.
1871 protects and promotes the important work of volunteer
pilot organizations by creating limited protection against
liability to volunteer pilot organizations and pilots so that
they are able to procure necessary insurance and continue their
important operations.
Legislative History.--Rep. Thelma Drake introduced H.R.
1871 on April 27, 2005, and it was subsequently referred to the
Committee on the Judiciary. On March 2, 2006, the Committee on
the Judiciary held a markup on the bill and reported it
favorably with an amendment by voice vote. The House of
Representatives considered H.R. 1871 under suspension of the
rules on July 17, 2006, and passed the bill by voice vote.
National Security Issues
H.R. 418, the REAL ID Act
Summary of Provisions of the REAL ID Act within the
Jurisdiction of the Judiciary Committee
Section 101. Preventing Terrorists from Obtaining Relief
from Removal. As the staff of the 9/11 Commission determined,
terrorist aliens have exploited our asylum laws to enter and
remain in the United States. Aliens who pose a danger to the
national security of the United States have been barred from
receiving asylum and withholding of removal by regulation since
1990. In 1996, Congress amended the Immigration and Nationality
Act (INA) to explicitly bar aliens who were inadmissible or
deportable on terrorism grounds from receiving asylum and
withholding. Despite these bars to dangerous aliens receiving
asylum, however, the 9/11 Terrorist Travel monograph notes that
``[a] number of terrorists [have] . . . abused the asylum
system.''
For example, Ramzi Yousef and Ahmad Ajaj, plotters of the
first World Trade Center bombing, ``concocted bogus political
asylum stories when they arrived'' to remain in the United
States in 1992. Similarly, Sheikh Abdul Rahman ``avoided being
removed from the United States by filing an application for
asylum and withholding of deportation to Egypt in . . . 1992.''
In addition to these aliens whose asylum abuse was
specifically described in the Terrorist Travel Monograph, other
alien terrorists have abused our generous asylum laws. In
January 1993, 11 months after he applied for asylum, Mir Kansi
killed two CIA employees in front of CIA headquarters in
Langley, Virginia. Kansi had been a visa overstay for almost a
year before filing that application. Hesham Hedayet killed two
in a shooting spree at Los Angeles International Airport on
July 4, 2002. He entered the United States in 1992, and
extended his stay by filing an asylum application one month
before his stay ended. His application was administratively
denied, but he adjusted his status 17 months later after his
wife won the visa lottery.
Nor did the reforms in the mid-1990s end such abuse. In
February 1997, for example, Gazi Ibrahim Abu Mezer was released
after entering the United States illegally when he stated that
he would be applying for asylum. On July 31, 1997, Mezer was
arrested in a Brooklyn apartment for planning to bomb the New
York City subway system.
In January 1999, Somali Nuradin Abdi was granted asylum.
According to federal prosecutors, Abdi used that status to
apply for a travel document to go to Africa for terrorist
training. After he returned to the United States, he was
charged with conspiring to provide material support for al
Qaeda, and the Justice Department claims ``that Abdi, along
with admitted al Qaeda operative Iyman Ferris and other co-
conspirators, initiated a plot to blow up a Columbus [Ohio]
area shopping mall.'' The government has also revoked his
asylum because ``with the exception of some minor biographical
data, every aspect of [Abdi's] asylum application . . . was
false.''
The REAL ID Act responded to terrorist abuse of our asylum
laws. Specifically, section 101 amended section 208 INA to: (1)
authorize the Secretary of Homeland Security, in addition to
the Attorney General, to grant asylum; (2) require asylum
applicants to prove that race, religion, nationality,
membership in a particular social group, or political opinion
was or will be (if removed) at least one central reason for
their persecution; and (3) provide that an applicant's
testimony may be sufficient to sustain this burden of proof
only if the trier of fact determines that it is credible,
persuasive, and fact-specific. It also requires the applicant
to provide corroborating evidence where requested by the trier
of fact unless the applicant does not have the evidence and
cannot reasonably obtain it.
Section 101 of the REAL ID also authorizes a trier of fact,
considering the totality of the circumstances and all relevant
factors, to base credibility determinations in asylum cases on
the: (1) demeanor, candor, or responsiveness of the applicant
or witness; (2) inherent plausibility of the applicant's or
witness's account; (3) consistency between the applicant's or
witness's written and oral statements; (4) internal consistency
of each such statement; (5) consistency of such statements with
other evidence of record (including the Department of State's
reports on country conditions); and (6) any inaccuracies or
falsehoods in such statements regardless of whether they go to
the heart of the applicant's claim. This section also makes
these provisions regarding proof requirements and credibility
determinations in asylum proceedings applicable to other
requests for relief from removal, and limits judicial review of
determinations regarding the availability of corroborating
evidence.
In addition, section 101 removes the numerical limit on the
number of aliens granted asylum who may become lawful permanent
residents in any fiscal year (previously set at 10,000), and
struck a provision in the INA setting refugee admission numbers
for persons subject to persecution for their resistance to
coercive population control methods.
Section 102. Waiver of Legal Requirements Necessary for
Improvement of Barriers at Borders; Federal Court Review.
Section 102 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 provided that the Attorney General
should take such actions necessary to install additional
physical barriers and roads in the vicinity of the U.S. border
to deter illegal crossings, including the construction of
multiple layers of fencing along the 14 miles of the southern
land border inland from the Pacific Ocean. In response to a
series of lawsuits that were inordinately delaying completion
of the required fencing, section 102 of the REAL ID Act
provides that notwithstanding any other provision of law, the
Secretary of Homeland Security shall have the authority to
waive all legal requirements the Secretary, in the Secretary's
sole discretion, determines necessary to ensure expeditious
construction of the barriers and roads under section 102 of the
1996 law. In addition, the district courts of the United States
shall have exclusive jurisdiction to hear all causes or claims
arising from any action undertaken, or any such decision made,
by the Secretary. A cause of action or claim may only be
brought alleging a violation of the Constitution of the United
States. An interlocutory or final judgment, decree, or order of
the district court may be reviewed only upon petition for a
writ of certiorari to the Supreme Court of the United States.
Section 103. Inadmissibility Due to Terrorist and Terrorist
Related Activities. Prior to enactment of the REAL ID Act, the
Immigration and Nationality Act was based on a flawed
understanding of how terrorist organizations operate. The INA
read that if an alien provided funding or other material
support to a terrorist organization that had not yet been
designated by the Secretary of State as a terrorist
organization, the alien was not inadmissible or deportable if
the alien could show that he did not know that the funds or
support would further the organization's terrorist activity,
i.e., the alien's donation did not immediately go to buying
explosives. This fundamentally misunderstood how terrorist
organizations operate. Many terrorist organizations use front
organizations (including charities and so-called
``humanitarian'' groups) to support their terrorist activities
and as cover for their terrorist activities. As President Bush
has explained:
[I]nternational terrorist networks make frequent use of charitable
or humanitarian organizations to obtain clandestine financial and other
support for their activities . . . [T]he provision of humanitarian
materials [to these groups] could be used as a loophole through which
support could be provided to individuals or groups involved with
terrorism and whose activities endanger the safety of United States
nationals, both here and abroad.
Money given to terrorist organizations is fungible. In
1996, Congress ``recognize[d] the fungibility of financial
resources'' and found that ``[a]llowing an individual to supply
funds . . . to a [terrorist] organization helps defray the cost
to the terrorist organization of running the ostensibly
legitimate activities. This in turn frees an equal sum that can
then be spent on terrorist activities.'' Senator Dianne
Feinstein has stated that:
Some have raised the objection that certain groups, that may
conduct terrorist operations, also run humanitarian or social service
operations, like schools and clinics. But I simply do not accept that
so-called humanitarian works by terrorist groups can be kept separate
from their other operations. I think the money will ultimately go to
bombs and bullets, rather than babies, or, because money is fungible,
it will free up other funds to be used on terrorist activities.
Based on this understanding of how terrorist organizations
work, the REAL ID Act was written so that an alien who provides
funds or other material support to any terrorist organization
is deportable unless the alien did not know, and should not
reasonably have known, that the organization was a terrorist
organization. There is no reason that knowing donations to a
terrorist organization should be excused merely because the
terrorist group is new or transmogrified from an earlier group
or because political considerations or bureaucratic delays at
the State Department have prevented it from being designated.
The specific changes to the INA made by section 103 are as
follows:
--Prior to the REAL ID Act, representatives of
foreign terrorist organizations as designated by the
Secretary of State under section 219 of the INA were
inadmissible, as were representatives of political,
social or other similar groups whose public endorsement
of acts of terrorist activity the Secretary of State
determined undermined U.S. efforts to reduce or
eliminate terrorist activity. Section 103 provides that
representatives of any terrorist organization are
inadmissible, as are representatives of any political,
social, or other group that endorses or espouses
terrorist activity.
--Prior to the REAL ID Act, members of foreign
terrorist organizations as designated by the Secretary
of State under section 219 were inadmissible if the
members knew or should have known the organizations
were terrorist organizations. Section 103 provides that
all members of terrorist organizations as designated by
the Secretary of State under section 219 or as
otherwise designated by the Secretary of State in the
Federal Register are inadmissible. Also inadmissible
are all members of other terrorist organizations unless
the members can demonstrate by clear and convincing
evidence that they did not know, and should not
reasonably have known, that the organizations were
terrorist organizations.
--Prior to the REAL ID Act, aliens were inadmissible
who had used their position of prominence within any
country to endorse or espouse terrorist activity, or to
persuade others to support terrorist activity or a
terrorist organization, in a way the Secretary of State
had determined undermined U.S. efforts to reduce or
eliminate terrorist activities. Section 103 provides
that any aliens are inadmissible who endorse or espouse
terrorist activity or persuade others to do so or to
support a terrorist organization.
--Section 103 provides that any aliens who receive
military-type training from or on behalf of a terrorist
organization are inadmissible.
--Prior to the REAL ID Act, aliens were inadmissible
who solicited funds or other things of value for a
terrorist organization not designated by the Secretary
of State, unless the solicitors could demonstrate that
they did not know, and should not reasonably have
known, that the solicitations would further the
organization's terrorist activity. Section 103 provides
that aliens are inadmissible who solicit for a non-
designated terrorist organization unless the solicitors
can demonstrate by clear and convincing evidence that
they did not know, and should not reasonably have
known, that the organization was a terrorist
organization.
--Prior to the REAL ID Act, aliens were inadmissible
who solicited any individual for membership in a
terrorist organization not designated by the Secretary
of State, unless the solicitors could demonstrate that
they did not know, and should not reasonably have
known, that the solicitations would further the
organization's terrorist activity. Section 103 provides
that aliens are inadmissible if they solicit any
individual for membership in a non-designated terrorist
organization unless the solicitors can demonstrate by
clear and convincing evidence that they did not know,
and should not reasonably have known, that the
organization was a terrorist organization.
--Section 103 provides that aliens are inadmissible
who afford material support to any member of a
terrorist organization as designated by the Secretary
of State under section 219 or as otherwise designated
by the Secretary of State in the Federal Register.
--Prior to the REAL ID Act, aliens were inadmissible
for affording material support to a terrorist
organization not designated by the Secretary of State,
unless the aliens could demonstrate that they did not
know, and should not reasonably have known, that the
acts would further the organization's terrorist
activity. Section 103 provides that aliens are
inadmissible for affording material support to a
terrorist organization not designated by the Secretary
of State, or to any member of such organization, unless
the aliens can demonstrate by clear and convincing
evidence that they did not know, and should not
reasonably have known, that the organization was a
terrorist organization.
--Prior to the REAL ID Act, a terrorist organization
meant an organization (1) designated by the Secretary
of State under section 219 of the INA, (2) otherwise
designated, upon publication in the Federal Register,
by the Secretary of State in consultation with or upon
the request of the Attorney General, as a terrorist
organization, after finding that the organization
committed or incited to commit, under circumstances
indicating an intention to cause death or serious
bodily injury, a terrorist activity, prepared or
planned a terrorist activity, or gathered information
on potential targets for terrorist activity, or (3) was
a group of two or more individuals, whether organized
or not, which engaged in the activities described
above.
--Section 103 makes two changes to this definition.
First, the culpable activities making an organization a
terrorist organization are expanded to include (1)
soliciting funds or other things of value for a
terrorist activity, a terrorist organization designated
by the Secretary of State under section 219 or
otherwise through the Federal Register, or to any other
terrorist organization unless the solicitor can
demonstrate by clear and convincing evidence that it
did not know, and should not reasonably have known,
that the organization was a terrorist organization, (2)
soliciting any individual to engage in terrorist
conduct, for membership in a terrorist organization
designated by the Secretary of State under section 219
or otherwise through the Federal Register, or for
membership in any other terrorist organization unless
the solicitor can demonstrate by clear and convincing
evidence that it did not know, and should not
reasonably have known, that the organization was a
terrorist organization, or (3) affording material
support for (a) the commission of a terrorist activity,
(b) to any individual the organization knows, or
reasonably should know, has committed or plans to
commit a terrorist activity, (c) to a terrorist
organization designated by the Secretary of State under
section 219 or otherwise through the Federal Register,
or (d) to any other terrorist organization unless the
organization can demonstrate by clear and convincing
evidence that it did not know, and reasonably should
not have known, that the terrorist organization was a
terrorist organization. Second, section 103 provides
that a non-designated terrorist organization is a group
of two or more individuals, whether organized or not,
which engages in, or has a subgroup which engages in,
the activities as added above in addition to the
activities described in prior law.
Section 104. Waiver for Certain Grounds of Inadmissibility.
Prior to the REAL ID Act, the bar to inadmissibility for
affording material support could be waived in the sole
unreviewable discretion of the Secretary of State, after
consultation with the Attorney General, or the Attorney
General, after consultation with the Secretary of State. In its
place, section 103 provides that the Secretary of State, after
consultation with the Attorney General and the Secretary of
Homeland Security, or the Secretary of Homeland Security, after
consultation with the Secretary of State and the Attorney
General, may in their sole unreviewable discretion waive the
ground of inadmissibility of (1) being a representative of a
political, social, or other group that endorses or espouses
terrorist activity, (2) endorsing or espousing terrorist
activity or persuading others to do so or to support a
terrorist organization, and (3) affording material support.
They may also find in their sole unreviewable discretion that
an organization is not a terrorist organization if it would be
so categorized solely by virtue of having a subgroup that
engaged in terrorist activities. Each fiscal year, the
Secretaries of State and Homeland Security must provide to
Congress a report on the aliens who have received waivers. They
must also provide Congress with a report within one week of
finding that an organization is not a terrorist organization
pursuant to section 104.
Section 105. Removal of Terrorists. Prior to enactment of
the REAL ID Act, one of the most basic defects in the manner in
which our immigration laws responded to the threat from alien
terrorists was that not all terrorism-related grounds of
inadmissibility were also grounds of deportability.
Essentially, some terrorists and their supporters could be kept
out of the United States, but as soon as they were admitted to
the U.S. on tourist visas, they could not be deported for the
very same offenses. This hindered our nation's ability to
protect Americans from those alien terrorists who have
infiltrated the United States. Examples of aliens who could be
kept out of the U.S. but who could not be deported included
aliens who were likely to engage in terrorism, aliens who were
representatives of terrorist organizations, aliens who were
members of terrorist organizations, aliens who used their
position of prominence to endorse or espouse terrorism, and
aliens who had been associated with a terrorist organization
(and intended while in the U.S. to engage in activities that
could endanger the welfare, safety, or security of the U.S.).
Section 105 makes aliens deportable for these offenses to the
same extent that they would be inadmissible to the United
States. It provides that all aliens who are inadmissible for
terrorist or terrorist-related activities are also deportable
(should they have been admitted to the U.S.), as are aliens who
are inadmissible for associating with a terrorist organization.
Section 105 also deletes as duplicative the limited grounds
of deportation for receiving military-type training from a
terrorist organization that was contained in the Intelligence
Reform and Terrorism Prevention Act of 2004.
Section 106. Judicial Review of Orders of Removal. Section
106 of Division B addresses a number of judicial review
anomalies improperly favoring criminal aliens that were created
by court decisions interpreting changes to the INA made in
1996. Since 1961, Congress has consistently provided that only
the courts of appeals may review removal orders. From 1961
through 1996, the INA provided that review in the courts of
appeals ``shall be the sole and exclusive procedure'' for
judicial review of deportation orders. See INA subsection
106(a) (1995). As the legislative history behind this provision
reveals, Congress aimed to ``create a single, separate,
statutory form of judicial review of administrative orders for
the deportation and exclusion of aliens from the United
States.'' \34\ Congress's ``fundamental purpose'' was ``to
abbreviate the process of judicial review of deportation
orders'' and to ``eliminat[e] the previous initial step in
obtaining judicial review--a suit in a District Court.'' \35\
Thus, a final order of deportation could be challenged only in
the appropriate court of appeals upon a timely filed petition
for review.
---------------------------------------------------------------------------
\34\ H. Rept. No. 1086, 87th Cong., 1st Sess., reprinted in 1961
U.S.C.C.A.N. 2950, 2966 (1961).
\35\ Foti v. INS, 375 U.S. 217, 224 (1963).
---------------------------------------------------------------------------
Such order could not have been challenged in district court
by way of habeas corpus. Although the INA contained another
provision permitting habeas review, see INA Sec. 106(a)(10)
(1995), several circuits interpreted that provision as not
providing habeas review over deportation orders, but only
review over collateral issues, such as whether the alien should
be released from custody or granted a stay of deportation
pending a petition for review.
Moreover, to the extent that habeas review of deportation
orders had been available before 1996, Congress attempted to
eliminate it in enacting the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132. One of the
statute's provisions, entitled ``Elimination of Custody Review
by Habeas Corpus,'' expressly repealed the former habeas
provision.\36\ This was part of Congress's broad efforts to
streamline immigration proceedings. Indeed, to expedite
removal, section 440(a) of AEDPA precluded all judicial review
of deportation orders for certain classes of criminal aliens.
---------------------------------------------------------------------------
\36\ See subsection 401(e), repealing INA paragraph 106(a)(10).
---------------------------------------------------------------------------
Congress continued these streamlining reforms when it
enacted the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208. In
IIRIRA, Congress reestablished that only courts of appeals--and
not district courts--could review a final removal order (or, to
use the pre-1996 nomenclature, deportation order or exclusion
order).\37\ In addition, Congress made clear that review of a
final removal order was the only mechanism for reviewing any
issue raised in a removal proceeding.\38\ Together, these
provisions were intended to preclude all district court review
of any issue raised in a removal proceeding. Finally, as it did
in AEDPA, Congress confirmed that criminal aliens could not
obtain any judicial review. IIRIRA expressly provided that,
``[n]otwithstanding any other provision of law, no court shall
have jurisdiction to review any final order of removal against
an alien who is removable by reason of having committed'' one
of various criminal offenses.\39\
---------------------------------------------------------------------------
\37\ See section 242(a)(1) of the INA (incorporating the Hobbs Act,
28 U.S.C. sec. 2347).
\38\ Section 242(b)(9) of the INA (2000).
\39\ See section 242(a)(2)(C) (2000) (emphasis added).
---------------------------------------------------------------------------
Despite Congress's efforts to limit judicial review in
1996, the Supreme Court expanded it just five years later. In
INS v. St. Cyr, the Supreme Court held that criminal aliens are
actually entitled to more review than they had before the 1996
amendments, and more review than non-criminal aliens.\40\
Specifically, the Court held that criminal aliens could seek
habeas review of their removal orders under 28 U.S.C. sec.
2241. With habeas review, the criminal alien would get review
in district court and, on appeal, in the court of appeals. The
Court recognized that, as a result of its decision, criminal
aliens would be able to seek review in district court and, on
appeal, in the courts of appeals, whereas non-criminal aliens
could obtain review only in the courts of appeals. It noted
that Congress could fix this anomaly, however. As the Court
stated, ``Congress could without raising any constitutional
questions, provide an adequate substitute [to section 2241]
through the courts of appeals.'' \41\
---------------------------------------------------------------------------
\40\ INS v. St. Cyr, 533 U.S. 289 (2001).
\41\ Id. at 314. n.38.
---------------------------------------------------------------------------
Among the many problems caused by St. Cyr, the most
significant is that this decision allows criminal aliens to
delay their expulsion from the United States for years.
Furthermore, because of St. Cyr, aliens who have committed
serious crimes in the United States are generally able to
obtain more judicial review than non-criminal aliens. As the
dissent in St. Cyr pointed out, allowing criminal aliens to
obtain habeas review of their immigration orders in the
district court ``brings forth a version of the statute that
affords criminal aliens more opportunities for delay-inducing
judicial review than are afforded to non-criminal aliens, or
even than were afforded to criminal aliens prior to the
legislation concededly designed to expedite their
removal.''\42\ Not only is this result unfair and illogical,
but it also wastes scarce judicial and executive resources.
---------------------------------------------------------------------------
\42\ 533 U.S. at 327 (Scalia, J. dissenting)
---------------------------------------------------------------------------
Finally, the result in St. Cyr has created confusion in the
federal courts as to what immigration issues can be reviewed,
and which courts can review them. The decision in St. Cyr
itself held that district courts, and not the courts of
appeals, have habeas corpus review authority over statutory
claims involving discretionary immigration relief. On the other
hand, after St. Cyr, every circuit court has held that courts
of appeals retain jurisdiction to review limited threshold
``jurisdiction to determine jurisdiction'' questions raised by
criminal aliens in petitions for review. Therefore, following
St. Cyr, some issues are still reviewable in the circuit courts
while others are reviewable only in the district courts,
resulting in bifurcated and inefficient review. Additionally,
the circuits have split on the question of which court may
entertain constitutional challenges to criminal aliens' removal
orders (a question left open in St. Cyr). All of this has
resulted in piecemeal review, uncertainty, lack of uniformity,
and a waste of resources both for the judicial branch and
Government lawyers--the very opposite of what Congress tried to
accomplish in 1996.
Section 106 addresses the anomalies created by St. Cyr and
its progeny by restoring uniformity and order to the law.
First, under this section, criminal aliens have fewer
opportunities to delay their removal, because they will not be
able to obtain district court review in addition to circuit
court review, and will not be able to ignore the thirty-day
time limit on seeking review. Second, criminal aliens do not
receive more judicial review than non-criminals. Under the
amendments in section 106, all aliens will get review in the
same forum--the courts of appeals. Third, by channeling review
to the courts of appeals, section 106 eliminates the problems
of bifurcated and piecemeal litigation. Thus, the overall
effect of the proposed reforms is to give every alien a fair
opportunity to obtain judicial review while restoring order and
common sense to the judicial review process.
Under section 106, all aliens who are ordered removed by an
immigration judge will be able to appeal to the BIA and then
raise constitutional and legal challenges in the courts of
appeals. No alien, not even criminal aliens, will be deprived
of judicial review of such claims. The Supreme Court has held
that in supplanting the writ of habeas corpus with an
alternative scheme, Congress need only provide a scheme which
is an ``adequate and effective'' substitute for habeas
corpus.\43\ Indeed, in St. Cyr itself, the Supreme Court
recognized that ``Congress could, without raising any
constitutional questions, provide an adequate substitute
through the courts of appeals.'' \44\ By placing all review in
the courts of appeals, section 106 provides an ``adequate and
effective'' alternative to habeas corpus.
---------------------------------------------------------------------------
\43\ See Swain v. Pressley, 430 U.S. 372, 381 (1977).
\44\ St. Cyr, 533 U.S. at 314 n.38.
---------------------------------------------------------------------------
Further, while the reforms in section 106 precludes
criminals from obtaining review over non-constitutional, non-
legal claims, it does not change the scope of review that
criminal aliens currently receive, because habeas review does
not cover discretionary determinations or factual issues that
do not implicate constitutional due process. Moreover, section
106 does not preclude habeas review over challenges to
detention that are independent of challenges to removal orders.
Instead, it eliminates habeas review only over challenges to
removal orders.
Section 401-07. H-2B Visas. H-2B visas are temporary work
visas that are available in all occupations when unemployed
Americans cannot be found. The existence of the job itself must
be temporary--the job must cease to exist within about one year
or must be seasonal. Many resorts and amusement parks utilize
H-2B visas for peak employment periods. Other examples include
construction, landscaping and home health care jobs. The annual
quota of H-2B visas is 66,000.
The ``Mikulski'' amendment provided that aliens who had
received H-2B visas in any of the last three years would not be
counted toward the 2005 or 2006 quotas when receiving H-2B
visas in those two years. In addition, the amendment
establishes a $150 fraud prevention and detection fee for all
H-2B visa petitions and it creates new administrative penalties
(of up to $10,000 per violation and disbarment from being able
to file new petitions for from one to five years) for a
substantial failure to meet any of the conditions of the
program or for a willful misrepresentation of a material fact
in a petition. The amendment also provides that the H-2B cap
shall be allocated for a fiscal year so that the total number
of aliens subject to its numerical limits who enter the United
States pursuant to a visa or are accorded H-2B status during
the first 6 months of such fiscal year is not more than 33,000.
Finally, the amendment provides that the Secretaries of State
and Homeland Security shall periodically provide Congress with
information about the use of the H-2B program.
Section 501. Reciprocal Visas for Nationals of Australia.
``H-1B'' visas are available for workers coming temporarily to
the United States to perform services in a specialty
occupation, usually requiring a bachelor's or higher degree in
the specific speciality. The annual quota on H-1B visas is
65,000 (with certain recipients not counted towards the cap).
Employers must pay H-1B aliens the prevailing wage and meet
other program requirements. The ``Frist'' amendment creates a
new ``E-3'' temporary work visa for Australian nationals that
mirrors the requirements of the H-1B program but has a separate
annual quota of 10,500.
Section 502. Visas for Nurses. The ``Hutchison'' amendment
makes a pool of 50,000 immigrant visas available for aliens who
have been approved for employment-based preference visas as
nurses or physical therapists. These visas will remain
available until exhausted.
Legislative History.--On January 26, 2005, Chairman F.
James Sensenbrenner, Jr., introduced H.R. 418, the REAL ID Act
of 2005. On February 10, 2005, the House passed H.R. 418 as
amended by a vote of 261-161. On May 11, 2005, the President
signed into law H.R. 1268, the Emergency Supplemental
Appropriations Act for Defense, the Global War on Terror, and
Tsunami Relief, 2005 (Pub. L. No. 109-13), division B of which
contained the language of H.R. 418 in modified form with
additional immigration provisions.
The Western Hemisphere Travel Initiative
Summary.--Section 7209 of the Intelligence Reform and
Terrorism Prevention Act of 2004 (Pub. L. No. 108-458) provided
that the Secretary of State shall develop and implement a plan
to require biometic passports or other identification at least
as secure, for all travel into the U.S. by U.S. citizens, to be
implemented no later than January 2008, and shall develop and
implement a plan to require biometic passports or other
identification at least as secure, for all travel into the U.S.
by Canadians, to be implemented no later than January 2008. The
Department of Homeland Security Appropriations Act, 2007,
modifies the deadline to be the earlier of June 1, 2009, or
three months after the Secretary of State and the Secretary of
Homeland Security make a certification that (1) the National
Institute of Standards and Technology certifies that a card
architecture has been selected that meets International
Organization for Standardization security standards and meets
best available practices for protection of personal
identification documents, (2) passport card technology has been
shared with the Canadian and Mexican governments, (3) an
agreement has been reached with the U.S. Postal Service on the
fee for the passport card, (4) an alternate procedure has been
developed for groups of children crossing the border, (5)
infrastructure and training has been provided for use of the
passport card, (6) the passport card has been made available to
U.S. citizens, and (7) a single implementation date has been
set for sea and land borders.
Legislative History.--On May 22, 2006, Representative
Harold Rogers introduced H.R 5441, the Department of Homeland
Security Appropriations Act, 2007. On July 13, 2006, the Senate
passed H.R. 5441, sec. 538 of title V of which contained the
language delaying implementation of the Western Hemisphere
Travel Initiative. On September 28, 2006, the conference report
to H.R. 5441 was filed (H. Rept. 109-699), sec. 546 of title V
of which contained this language. The House passed the
conference report on September 29 by a vote of 412-6, and the
Senate passed the conference report on the same day by voice
vote. On October 4, 2006, the President signed into law the
conference report to H.R. 5441 (Pub. L. No. 109-295).
H.R. 3199, the ``USA PATRIOT and Terrorism Prevention Reauthorization
Act of 2005''
Summary.--Chairman Sensenbrenner introduced H.R. 3199 on
June 11, 2005, which reauthorized the 16 provisions in the USA
PATRIOT Act and two provisions in the Intelligence Reform and
Terrorism Prevention Act of 2004 (IRTPA). Fifteen of the
provisions were set to expire in December 2005 and one
provision was set to expire in December 2006. Of the USA
PATRIOT Act authorities set to expire, H.R. 3199 permanently
extended 14 provisions and extended two for an additional 4
years. The Act also permanently extended one provision in IRTPA
and extended the other for 4 years. IRTPA reformed and enhanced
authorities for the intelligence community, terrorism
prevention and prosecution, border security, and international
cooperation and coordination.
H.R. 3199 was based on four years of comprehensive,
bipartisan oversight consisting of hearings, testimony,
Inspector General reports, briefings, and oversight letters.
For the 109th Congress, the Committee on the Judiciary held two
Full Committee, nine Subcommittee oversight hearings, and one
``minority-day'' hearing on the provisions of USA PATRIOT Act
that were set to expire on December 31, 2005 and several that
were not subject to the sunset.
The terrorists who attacked us on September 11th exploited
weaknesses in our own law enforcement and intelligence laws and
practices, and those plotting to attack us again will continue
to exploit any gaps or weaknesses. To address these problems,
Chairman Sensenbrenner introduced H.R. 2975, to ``Provide
Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001,'' on October 2, 2001. H.R. 2975 was unanimously
reported by the Judiciary Committee. The House and Senate
combined their versions of the legislation into H.R. 3162, the
``Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of
2001,'' (USA PATRIOT Act). This legislation incorporated
provisions of H.R. 3004 (107th), the ``Financial Anti-Terrorism
Act,'' which increased penalties for money laundering and
financing terrorist organizations; and H.R. 3160 (107th), the
``Bioterrorism Prevention Act of 2001,'' which provided law
enforcement personnel greater resources to assess and prevent
biological attacks on American soil. The USA PATRIOT Act was
signed into law by President Bush on October 26, 2001.\45\ Due
to the concerns that the USA PATRIOT Act new authorities could
lead to civil liberties violations, Congress included reporting
requirements and a sunset provision in the USA PATRIOT Act that
covered 16 law enforcement authorities.
---------------------------------------------------------------------------
\45\ Pub. L. No. 107-56, 115 Stat 272 (codified as amended in
scattered sections of 18 U.S.C. (2003)).
---------------------------------------------------------------------------
The USA PATRIOT Act tore down the Wall that prevented
agents from ``connecting the dots'' of the pending 9/11 attack.
H.R. 3199 would reauthorize key provisions of the USA PATRIOT
Act to ensure that the Wall will never be rebuilt. The USA
PATRIOT Act updated our investigative tools to better detect,
dismantle, and prevent terrorist acts by an unscrupulous,
deadly enemy. H.R. 3199 continues to support the efforts of our
law enforcement with these updated investigative tools. The USA
PATRIOT Act strengthened the penalties for attacking mass
transportation systems. H.R. 3199 further enhances those
penalties to conform the penalties for trains and mass transit
and responds to the clear and present danger that the
terrorists pose against our citizens as they travel. The USA
PATRIOT Act effectively targeted terrorist financing and now
terrorists have turned more and more to criminal activities and
profits from theft and the illegal drug trade. H.R. 3199
addresses the new trends in terrorism financing, narco-
terrorism, and the use of illicit contraband. H.R. 3199 also
adopted new reporting requirements and incorporated new
standards and protections against abuse.
Legislative History.--H.R. 3199 was introduced by
Representative F. James Sensenbrenner Jr., on July 11, 2005.
The same day, the legislation was referred to the Committee on
the Judiciary, and in addition to the Committee on Intelligence
(Permanent Select), for a period to be subsequently determined
by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee
concerned. On July 13, 2005, the Judiciary Committee met in
open session and ordered favorably reported the bill H.R. 3199
with amendment by a recorded vote of 23 yeas to 14 nays and 2
passes, a quorum being present voice vote. (H. Rept. No. 109-
174, Part I). On July 21, 2005, the bill passed by a recorded
vote of 257 yeas to 171 nays (Roll no. 414). November 9, 2005,
Chairman Sensenbrenner asked unanimous consent that the House
disagree to the Senate amendment, and agree to a conference. On
December 8, 2005, the Conference agreed to file a report. On
December 14, 2005, the conference report was agreed to in the
House by 251 yeas to 174 nays. (Roll no. 627). The Senate
failed to end debate on December 16, 2005 when cloture was not
invoked. The vote was 52 yeas and 47 nays. (Record Vote Number:
358). On March 2, 2006, the Senate agreed to the conference
report by 89 yeas to 10 nays. On March 9, 2006, the President
signed H.R. 3199 and it became public law 109-177.
Oversight Hearings on the Patriot Act
Oversight Hearing on the ``USA PATRIOT Act: A Review for the Purpose of
Its Reauthorization'' (April 6, 2005, Serial No. 109-12)
Witnesses: The Honorable Alberto Gonzales, Attorney General
of the United States
Oversight Hearing on ``Reauthorization of the USA PATRIOT Act'' (June
8, 2005, Serial No. 109-10)
Witnesses: The Honorable James B. Comey, Deputy Attorney
General, United States Department of Justice
Oversight Hearing on ``Reauthorization of the USA PATRIOT Act,
continued'' (June 10, 2005, Serial No. 109-29)
Witnesses: Carlina Tapia-Ruano, First Vice President,
American Immigration Lawyers Association; Dr. James J. Zogby,
President, Arab American Institute; Deborah Pearlstein,
Director, U.S. Law and Security Program; Chip Pitts, Chair of
the Board, Amnesty International USA.
Other Full Committee Oversight Hearings
Oversight Hearing on ``United States Department of Justice'' (Serial
No. 109-137)
Witnesses: The Honorable Alberto Gonzales, Attorney General
of the United States
Oversight Hearing on ``RECKLESS JUSTICE: Did the Saturday Night Raid of
Congress Trample the Constitution?'' (Serial No. 109-122)
Witnesses: On May 30, 2006, the Judiciary Committee
conducted an oversight hearing on the constitutional questions
raised by the FBI's raid of Rep. Jefferson's Capitol Hill
office. The following witnesses testified before the Committee:
Professor Charles Tiefer, Law Professor at the University of
Baltimore School of Law and former Assistant Legal Counsel to
the Senate (1979-1984), and Solicitor and Deputy General
Counsel to the House (1984-1995); The Honorable Robert S.
Walker, former Representative from Pennsylvania and former
Chairman of the Science Committee; Professor Jonathan Turley,
Professor of Law at George Washington University Law School;
and Mr. Bruce Fein, Esq., Principal at the Lichfield Group.
Professor Tiefer testified that in his experience as Deputy
General Counsel to the House of Representatives and Assistant
Legal Counsel to the Senate, the FBI's raid on Congressman
Jefferson's Capitol Hill office was unprecedented. Professor
Tiefer stated that in his tenure there had been numerous
investigations of Members of Congress for possible criminal
activities, but that the Department of Justice and the Federal
Bureau of Investigation had always respected Congress as a co-
equal branch of government by not executing a search warrant on
Congressional premises. Rather, in his experience, the FBI or
Justice Department would obtain a subpoena for the materials
they were seeking, and would allow the subject of the
investigation, together with the House General Counsel, to
assert a legislative privilege over any documents that were
covered by the Speech or Debate Clause of the United States
Constitution.
Congressman Walker testified that the FBI's raid on a co-
equal branch of government was of grave concern. He recommended
that Congress demand the return of the documents seized during
the raid, and that Congress conduct an extensive inquiry into
the decision-making process that allowed the unprecedented
search of a sitting Congressman's office. He also recommended
that Congress work with the executive to establish a series of
rules and guidelines for handling any similar incidents in the
future.
Professor Turley testified that the search of Congressman
Jefferson's office was unprecedented, and that it violated the
spirit, if not the letter, of the Constitutional protections of
the Speech or Debate Clause. Professor Turley testified that
the Speech or Debate Clause was taken from the English
Parliament's privileges--privileges that had arisen because of
the Crown's encroachment on Parliament's legislative functions.
Professor Turley stressed that there were other, less intrusive
methods that prosecutors could have used to obtain the
materials they sought without implicating the separation of
powers concerns raised by the FBI's actions in this case.
Mr. Fein testified that, if anything, the concerns
implicated by the Speech or Debate Clause are more important
today than they were at the country's founding given the number
of federal criminal statutes that could now be used to justify
a search of a Congressman's office. He advocated that Congress
enact a statute that would protect against these types of
searches. The model for such a statute could be found in the
Privacy Protection Act of 1980, which Congress enacted to
mitigate the constitutional questions raised by a search on a
newspaper office.
Other Matters Held at Full Committee
H.R. 9, the Fannie Lou Hamer, Rosa Parks and Coretta Scott King Voting
Rights Act Reauthorization and Amendments Act of 2006
Summary.--H.R. 9, the Fannie Lou Hamer, Rosa Parks and
Coretta Scott King Voting Rights Act Reauthorization and
Amendments Act of 2006 reauthorizes and amends the Voting
Rights Act of 1965. In addition to reauthorizing the expiring
provisions for an additional 25 years, H.R. 9 amends certain
provisions of the Voting Rights Act of 1965, including
terminating the Federal examiner provisions and amending
Section 5 to restore the provision's purpose and effect prongs
that had been significantly weakened by recent Supreme Court
decisions. H.R. 9 also amends Section 203, the bilingual
election assistance provision, to reflect changes in the data
collection method utilized by the U.S. Census Bureau and
authorizes the General Accountability Office to conduct a study
on the effectiveness of Section 203's bilingual assistance
requirements.
Legislative History.--H.R. 9 was introduced on May 2, 2006,
by Chairman Sensenbrenner. A companion bill was introduced in
the Senate at the same time by Senate Judiciary Committee
Chairman Specter. H.R. 9 was referred to the House Judiciary
Committee, where two legislative hearings were conducted by the
House Judiciary Subcommittee on the Constitution on May 4,
2006. Testimony was taken during the first legislative hearing
titled ``A Bill to Reauthorize and Amend the Voting Rights Act
of 1965: Part I'' from the following witnesses: Mr. J. Gerald
Hebert, Former Acting Chief, Civil Rights Division, Department
of Justice and voting litigation expert; Mr. Roger Clegg,
President and General Counsel, Center for Equal Opportunity;
and Mr. Debo Adegbile, Associate Director of Litigation, NAACP
Legal Defense and Education Fund, Inc.
Mr. Adegbile testified on the need for H.R. 9 to continue
the protections afforded by the expiring provisions for an
additional 25 years and to make certain amendments to
provisions that had been significantly weakened by the Supreme
Court over the last several years.
Mr. Clegg testified against H.R. 9 and reauthorizing the
VRA generally. In particular, Mr. Clegg testified on the
weakness of the Judiciary Committee's record and the inability
of the record to sustain an almost certain constitutional
challenge.
Mr. Hebert testified in support of H.R. 9 and the record
compiled by the House Judiciary Committee. In particular, Mr.
Hebert testified to the number of hearings held by the
Subcommittee on the Constitution and the strength of the
evidence compiled by the House Judiciary Committee to support
continuing the expiring provisions for an additional 25 years.
The second hearing, titled ``A Bill to Reauthorize and
Amend the Voting Rights Act of 1965: Part II,'' was also held
and testimony was taken from the following witnesses: Ms. Rena
Comisac, Principal Deputy Assistant Attorney General, Civil
Rights Division, Department of Justice; The Honorable Chris
Norby, Supervisor, Fourth District, Orange County Board of
Supervisors; Ms. Karen Narasaki, President and Executive
Director, Asian-American Justice Center; and Dr. James Tucker,
Voting Rights Consultant, NALEO Educational Fund, and Adjunct
Professor, Barrett Honors College, Arizona State University.
Ms. Comisac testified, on behalf of the Department of
Justice, in support of H.R. 9 and the need to continue the
Act's bilingual assistance provisions for an additional 25
years.
Mr. Norby presented testimony on the concerns that election
officials had with renewing Section 203 for an additional 25
years. Mr. Norby expressed concerns about the cost of
implementing Section 203, the Department of Justice's use of a
surname to identify potential recipients of bilingual
assistance, and the inadequacy of Section 203's definition of
what it means to be limited English proficient.
Ms. Narasaki testified in support of H.R. 9 in order to
continue the progress that has been made among language
minority citizens, particularly among Asian Americans. Ms.
Narasaki testified on the impact that Section 203 has had on
increasing the registration and turnout rates among single
language minority citizens, particularly since 1992 when
Congress inserted the 10,000 single language minority threshold
into Section 203's formula and the need to continue the
coverage formula over the next 25 years.
Dr. Tucker testified in support of H.R. 9 and the
effectiveness of the bilingual election assistance provisions
in enabling illiterate citizens to participate in the political
process. Dr. Tucker presented evidence revealing the continued
disparities in educational opportunities between populations
covered by Section 203's assistance provision and white
citizens as well as the limited number of English as Second
Language (ESL) literacy centers and the long waiting times to
attend the existing literacy centers. Dr. Tucker testified that
the continued disparities and limited number of ESL centers
justified extending Section 203's bilingual assistance
provision for an additional 25 years.
On May 10, 2006, the House Judiciary Committee met in open
session to consider H.R. 9 for purposes of a markup. An
amendment authorizing GAO to conduct a study on the
effectiveness of Section 203, was offered and accepted. A
quorum being present, H.R. 9 was ordered favorably reported as
amended by a roll call vote of 33 to 1. On May 22, 2006, H.R. 9
was reported (H. Rept. 109-478). On July 13, 2006, the House
passed H.R. 9 by a vote of 390 to 33. On July 20, 2006, the
Senate took up and passed without amendment H.R. 9 by a vote of
98 to 0. H.R. 9 was presented to the President and signed into
law on July 27, 2006 (Pub. L. No. 109-246).
H.R. 841, the Continuity in Representation Act
Summary.--H.R. 841 requires the expedited special election
of new Members within 49 days in the event more than 100
Members are killed in extraordinary circumstances. Special
provisions in H.R. 841 govern absentee ballots cast by members
of our armed forces, and overseas voters, who would have the
right to have their vote accepted if it is received within 45
days after the State transmits the ballots to them. Further,
federal laws governing the administration of elections for
federal office are explicitly preserved.
Legislative History.--H.R. 841 was introduced by Rep.
Sensenbrenner on February 16, 2005. No hearings were held on
H.R. 841 during this Congress, although a hearing was held by
the House Administration Committee on similar legislation
during the last Congress. On February 17, 2005, H.R. 841 was
reported out of the House Administration Committee by voice
vote. On February 24, 2005, H.R. 841 was discharged from the
Judiciary Committee, and it passed the House by a vote of 329
to 68. Identical legislation became part of P.L. 109-55.
H.R. 1595, To implement the recommendations of the Guam War Claims
Review Commission
Summary.--The Committee on the Judiciary received a
sequential referral of H.R. 1595 and considered the legislation
as reported by the Committee on Resources. The legislation
would have authorized the U.S. Foreign Claims Settlement
Commission to set up a claims process to pay claims for death
or injury during the World War II Japanese occupation of Guam.
The legislation provided for funding of those payments from the
Judgement Fund (31 U.S.C. sec. 1304). Claims would have been
paid for death, personal injury, forced labor, forced marching,
and internment of citizens of Guam during the occupation. The
legislation considered by the Committee would have included a
second category of personal injury claims by survivor
claimants, when the original claimant was deceased. Those
claims would have been eligible for a payment of $7,000
regardless of the severity of injury.
Legislative History.--On April 13, 2005, Representative
Madeleine Bordallo introduced H.R. 1595. On April 25, 2006, the
Committee on Resources reported the bill as amended (H. Rept.
109-437, Part 1). On the same day, the Committee on the
Judiciary received a sequential referral of the legislation
until June 9, 2006. On June 6, 2005, the Committee ordered H.R.
1595 reported by voice vote as amended by the Committee on
Resources. On June 9, 2006, the Committee reported H.R. 1595
(H. Rept. 109-437, Part II). No further action was taken on
H.R. 1595.
H.R. 2389, the Pledge Protection Act of 2005
Summary.--The Pledge of Allegiance reads: ``I pledge
allegiance to the Flag of the United States of America, and to
the Republic for which it stands, one Nation under God,
indivisible, with liberty and justice for all.'' Although the
United States Supreme Court reversed and remanded the Ninth
Circuit's latest holding striking down the Pledge as
unconstitutional, the Supreme Court did so on the grounds that
the plaintiff lacked the legal standing to bring the case. The
concurring Justices concluded that the Court in its decision
``erect[ed] a novel prudential standing principle in order to
avoid reaching the merits of the constitutional claim.'' In
order to protect the Pledge from federal court decisions that
would have the effect of invalidating the Pledge across several
states, including a case that is currently pending before the
Ninth Circuit, H.R. 2389 would reserve to the state courts the
authority to decide whether the Pledge is valid within each
state's boundaries and place final authority over a state's
Pledge policy in the hands of the states themselves.
Legislative History.--H.R. 2389, the ``Pledge Protection
Act of 2005,'' was introduced by Rep. Todd Akin on May 17,
2005. No hearings were held on H.R. 2389. On June 28, 2006, the
Committee failed to report H.R. 2389 favorably by a vote of 15
to 15. On July 19, 2006, H.R. 2389 passed the House (as
amended) by a vote of 260 to 167.
H.R. 3402, the ``Violence Against Women and Department of Justice
Reauthorization Act of 2005''
Summary.--This comprehensive package was negotiated between
the House and Senate to reauthorize vital programs within the
Department of Justice to combat all crimes and programs within
the Office of Violence Against Women to specifically target
crimes of domestic violence, dating violence, sexual assault,
and stalking.
Authorization is an important oversight tool that allows
Congress and committees of jurisdiction to create, amend,
extend, and set priorities for programs within executive
agencies. Despite the law's requirement for regular
Congressional authorization of the Justice Department, until
recently DOJ had not been formally authorized by Congress since
1980. The Committee on Judiciary took action to rectify the
situation in the 107th Congress and reauthorized the programs
within the Department of Justice. In the 109th Congress, the
Committee again developed legislation to provide Congress with
legislation to give direction to the Department of Justice and
the important programs it administers.
Titles I through IX of this bill focus on reauthorizing,
expanding, and improving programs that were established in the
Violence Against Women Act of 1994 and reauthorized in 2000.
The bill reauthorizes some important core programs such as STOP
grants and grants to reduce campus violence. Because these
crimes affect both genders, it is important to note that the
text of the legislation specifies that programs addressing
these problems are intended to serve both female and male
victims.
Additionally, this legislation specifies that the same
rules apply to these funds as to other Federal grant programs.
It is illegal to use the grant funds devoted to these programs
for political activities or lobbying. It is the intent of
Congress that these funds be used to provide services to
victims and train personnel who deal with these violent crimes.
The Department of Justice is expected to enforce that provision
for all its grants and monitor grant activities to ensure
compliance not only with this condition, but all the conditions
of the grants.
Title X of the legislation makes important changes to laws
governing the collection of DNA samples. Current law allows
Federal authorities to collect DNA samples from individuals
upon indictment. This provision expanded that authority to
permit the Attorney General to collect DNA at arrest or
detention of non-citizens. Because of this expansion, this
section also amended the current expungement protocols and
directs the FBI to remove samples in the event of an overturned
conviction, acquittal, or the charge was dismissed.
States may seek funding to reduce the backlog in crime
scene evidence, to reduce the backlog in DNA samples of
offenders convicted of qualifying state offenses, or to enhance
the State's DNA laboratory capabilities. This section of Title
X expanded the grant purpose regarding offender DNA samples to
include all samples collected under applicable state law;
accordingly, States can now use federal funding to test samples
collected from arrestees or voluntary elimination samples.
Finally, this section repealed a carve-out authorizing John Doe
indictments in sexual assault crimes and made uniform the
federal law that tolls the statute of limitations for all
federal crimes where DNA evidence is collected (Sec. 3297).
Title XI will ensure further accountability from the
Department with a number of provisions designed to ensure grant
recipients are meeting the conditions established by Congress
for the programs. The bill includes an Office of Audit,
Assessment, and Management to monitor grants and a Community
Capacity Development Office to assist grant applicants and
grantees in meeting grant conditions.
In addition to the numerous oversight tools provided in the
Act, there are a number of important reforms of grant programs
and provisions designed to improve programs and offices within
the Department. Title XI consolidates the Local Law Enforcement
Block Grant program and the Byrne grant program into one
program with the same purposes to eliminate duplication and
improve administration of the grants. Additionally, it
preserves the COPS program, but addresses concerns expressed by
many Members about the previous use of the these grants. This
will allow grantees greater flexibility in the use of these
funds.
Title XI also reauthorizes DOJ programs that will expire or
have expired, such as the Juvenile Accountability Block Grants
program and the Sex Offender Management program, as well as
some very important modifications to the criminal code such as
extending the statute of limitations for human trafficking
offenses and applying increased criminal penalties to prison
guards who sexually abuse persons in their custody.
Legislative History.--The legislation was introduced on
July 22, 2005, on a bipartisan basis with Chairman
Sensenbrenner, Ranking Member Conyers, Rep. Coble, Rep. Weiner,
Rep. Green, Rep. Solis, Rep. Brown-Waite, and Rep. Schiff. On
July 27, 2005, the Committee met in open session and ordered
reported favorably, with amendment, the legislation, H.R. 3402,
on a voice vote. The legislation passed by the House of
Representatives, with amendment, by a vote of 415-4, on
September 28, 2005. H.R. 3402 passed the Senate with amendment
by unanimous consent on December 16, 2005. The House of
Representatives agreed to suspend the rules and pass the
legislation, as amended by the Senate, by voice vote on
December 17, 2005. The legislation was signed by the President
on January 5, 2006, and became Public Law 109-162.
H.R. 3505, the Financial Services Regulatory Relief Act of 2005
Summary.--Congressman Jeb Hensarling introduced H.R. 3505
on July 28, 2005. The bill amends various provisions of federal
banking and securities laws to provide regulatory relief and
promote greater efficiency and productivity for federally-
insured depository institutions.
Legislative History.--H.R. 3505 was referred sequentially
to the House Judiciary Committee on December 17, 2005, and the
Committee was granted extensions to further consider the bill
until February 24, 2006. On February 15, 2006, the Judiciary
Committee held a mark-up and ordered H.R. 3505 favorably
reported by voice vote. The Committee filed H. Rept. 109-356,
Part II on February 16, 2006. On March 8, 2006, the House
considered H.R. 3505 under suspension of the rules and passed
the bill by a vote of 415-2. For further action see S. 2856,
which became Pub. L. No. 109-351.
H.R. 3736, the Katrina Volunteer Protection Act
Summary.--H.R. 3736 would provide a uniform federal floor
on which all volunteers can confidently stand when helping
those in need in the wake of Hurricane Katrina. H.R. 3736
provides that any person or entity that, in response to
Hurricane Katrina, voluntarily, in good faith, and without a
preexisting duty or expectation of compensation, renders aid,
medical treatment, or rescue assistance to any person, shall
not be liable for injuries alleged to have been sustained by
such person or entity unless the alleged injuries were caused
by willful, wanton, reckless, or criminal conduct on the part
of the volunteer. H.R. 3736 also does not apply to any person
or entity whose conduct constitutes a violation of a Federal or
State civil rights law.
Legislative History.--H.R. 3736 was introduced by Rep.
Sensenbrenner on September 13, 2005. On September 14, 2005, it
passed the House on the Suspension Calendar by voice vote. No
further action on this legislation was taken by the Senate.
H.R. 4698, the Disaster Relief Volunteer Protection Act
Summary.--H.R. 4698 would provide liability relief for
volunteers engaged in responses to disasters. The bill applies
if the circumstances are covered by a ``Disaster Declaration,''
which could be either (1) a public health emergency declaration
by the Secretary of Health and Human Services; (2) a
declaration of a public health emergency or a risk of such
emergency as determined by the Secretary of Homeland Security;
or (3) an emergency or major disaster declaration by the
President. Regarding disaster relief volunteers, the bill
provides that a disaster relief volunteer shall not be liable
for any injury caused by an act or omission of such volunteer
in connection with such volunteer's providing or facilitating
the provision of disaster relief services if (1) the injury was
not caused by willful, wanton, reckless, or criminal misconduct
by the volunteer, or conduct that constitutes a violation of
Federal or State civil rights laws; and (2) the injury was not
caused by the volunteer's operating a motor vehicle, vessel,
aircraft, or other vehicle for which the state requires the
operator or the owner of the vehicle, craft, or vessel to
possess an operator's license or maintain insurance. The bill
also protects from the threat of liability those who employ or
are in a business partnership with disaster relief volunteers,
and also those who host, work with, or make their facilities
available to a disaster relief volunteer to enable such
volunteer to provide disaster relief services. These provisions
protect individuals, businesses, and governments from liability
for the actions of any volunteers to whom they make facilities
available to further their volunteer efforts. Regarding
nonprofit organizations themselves, the bill provides that a
nonprofit organization shall not be liable for any injury
caused by its actions or omissions in connection with the
nonprofit organization's providing or facilitating the
provision of disaster relief services if the injury was not
caused by willful, wanton, reckless, or criminal misconduct by
the nonprofit organization, or conduct that constitutes a
violation of Federal or State civil rights laws. Regarding the
liability of governmental and intergovernmental entities, the
bill provides that if they donate to an agency or
instrumentality of the United States disaster relief goods,
they shall not be liable for any injury caused by such donated
goods if the injury was not caused by willful, wanton,
reckless, or criminal misconduct by such governmental or
intergovernmental entity, or conduct that constitutes a
violation of Federal or State civil rights laws. The bill also
protects disaster relief volunteers and governmental or
intergovernmental entities donating disaster relief goods from
punitive damages, unless the claimant establishes by clear and
convincing evidence that its damages were proximately caused by
willful, wanton, reckless, or criminal misconduct, or conduct
that constitutes a violation of Federal or State civil rights
laws. The bill also protects disaster relief volunteers and
governmental or intergovernmental entities donating disaster
relief goods under a ``fair share'' rule under which damages
for liability for noneconomic losses, if permitted, shall be
allocated in direct proportion to the percentage of
responsibility of that defendant. Finally, the bill applies its
liability protections to anyone who volunteers and provides a
service of a type that generally requires a license,
certificate, or authorization, provided such volunteer is
licensed, certified, or authorized to provide such services in
any State, even if such State is not the State in which the
disaster relief volunteer provides disaster relief services.
Legislative History.--H.R. 4698 was introduced by Rep.
Sensenbrenner on February 2, 2006. On March 15, 2006, it was
ordered reported by the House Judiciary Committee (as amended)
by a vote of 16 to 9.
H.R. 4709, the Telephone Records and Privacy Protection Act of 2006
Summary.--Congressman Lamar Smith introduced H.R. 4709 on
February 8, 2006. The bill amends title 18 of the United States
Code to provide criminal penalties for the fraudulent
acquisition or unauthorized disclosure of telephone records.
Legislative History.--H.R. 4709 was referred to the House
Judiciary Committee on February 8, 2006. On March 2, 2006, the
Judiciary Committee held a mark-up and ordered the bill
favorably reported by voice vote. The Committee filed H. Rept.
109-395 on March 16, 2006. On April 25, 2006, the House
considered H.R. 4709 under suspension of the rules and passed
the bill by a vote of 409-0.
H.R. 4356, the Emergency and Disaster Assistance Fraud Penalty
Enhancement Act of 2005
Summary.--Chairman F. James Sensenbrenner, Jr. introduced
H.R. 4356 on November 17, 2005. The bill amends title 18 of the
United States Code to provide a new criminal penalty for fraud
in connection with emergency or major disaster benefits, and
increases criminal penalties for mail and wire fraud in
connection with such benefits.
Legislative History.--H.R. 4356 was referred to the House
Judiciary Committee on November 17, 2005, and to the
Subcommittee on Crime, Terrorism and Homeland Security on
February 2, 2006. The Subcommittee on Crime, Terrorism and
Homeland Security was discharged from consideration of the bill
on February 24, 2006. On March 2, 2006, the Judiciary Committee
held a mark-up and ordered the bill favorably reported by voice
vote. On May 19, 2006, the Committee filed H. Rpt. 109-473. On
June 20, 2006, the House considered H.R. 4356 under suspension
of the rules and passed the bill by voice vote.
H.R. 4127, the Data Accountability and Trust (DATA) Act of 2006
Summary.--Congressman Cliff Stearns introduced H.R. 4127 on
October 25, 2005. The bill requires owners and possessors of
personal data in electronic form to adopt security policies to
protect the data, and provides for nationwide notice to
consumers in the event of a breach of such data.
Legislative History.--The bill was reported from the House
Committee on Energy and Commerce on March 29, 2006 by a vote of
41-0. The bill was jointly and sequentially referred to the
House Judiciary Committee on May 4, 2006 for a period ending
not later than June 2, 2006. On May 25, 2006, the Judiciary
Committee held a mark-up and ordered the bill favorably
reported by voice vote. On May 26, 2006, the Committee filed H.
Rpt. 109-453, Part II. The bill was placed on the Union
Calendar and there was no further action on the legislation.
H.R. 5228, To require representatives of governments designated as
State Sponsors of Terrorism to disclose to the Attorney General
lobbying contacts with legislative branch officials, and for
other purposes
Summary.--The purpose of H.R. 5228 is to require enhanced
disclosure of the lobbying activities of State Sponsors of
Terror. The bill would amend the Foreign Agents Registration
Act to require that the agents of a State Sponsor of Terrorism
file detailed reports of their lobbying contacts with Members
of Congress within 45 days of that contact.
Legislative History.--Rep. Lincoln Diaz-Balart introduced
H.R. 5228 on April 27, 2006, and the bill was referred to the
Committee on the Judiciary and the Subcommittee on Crime,
Terrorism, and Homeland Security as well as the Committee on
International Relations. Neither committee took further action
on the bill. The House of Representatives considered H.R. 5228
under suspension of the rules on June 20, 2006, and the bill
failed by a vote of 263 to 159.
H.R. 5285, the ``Electronic Surveillance Modernization Act''
Summary.--Representative Heather Wilson, Chairman
Sensenbrenner, and Select Committee on Intelligence Chairman
Hoekstra, and others introduced H.R. 5825, the ``Electronic
Surveillance Modernization Act,'' on July 18, 2006. This bill
would strengthen oversight of the executive branch and enhance
accountability by requiring the Government to provide more
information to the courts and to each Member of the House and
Senate Intelligence Committees; would modernize and simplify
the process for getting a FISA warrant and clarify its scope
and applicability; would update FISA to account for technology
changes in 21st Century communications; would clarify the
authority of our intelligence agencies in the event of an
attack on the United States; and would clarify the President's
authority and the Congress' oversight of surveillance programs.
The testimony presented at two hearings before the Subcommittee
on Crime, Terrorism, and Homeland Security, demonstrated that
the FISA process must be streamlined and technology-neutral.
Legislative History.--The Committee on the Judiciary
Subcommittee on Crime, Terrorism, and Homeland Security held
two hearings on H.R. 5825 on the 6th and 12th of September
2006. On September 20, 2006, the Committee met in open session
and ordered favorably reported the bill, H.R. 5825, with an
amendment, by roll call vote with 20 ayes and 16 nays, a quorum
being present. The bill was reported to the House on November
29, 2001 (H. Rept. 109-630, Part II). The House passed the bill
on September 28, 2006, by a recorded vote (Roll No. 502) of 232
yeas to 191 nays. No further action was taken on the bill, H.R.
3209, during the 109th Congress.
H.R. 5318, the Cyber-Security Enhancement and Consumer Data Protection
Act of 2006
Summary.--On May 9, 2006, Chairman F. James Sensenbrenner,
Jr. introduced H.R. 5318. The bill amends provisions of title
18, United States Code to increase penalties for computer
crimes and identity theft, and provides for notice to federal
law enforcement in the event of a breach of computer systems
containing personal data.
Legislative History.--The bill was referred to the
Subcommittee on Crime, Terrorism and Homeland Security on May
9, 2006. The Crime Subcommittee held hearings on the bill on
May 11, 2006. The Subcommittee held a mark-up and ordered the
bill favorably reported by voice vote on May 18, 2006. On May
25, 2006, the Judiciary Committee held a mark-up and ordered
the bill favorably reported by voice vote, with a manager's
amendment. On June 22, 2006, the Committee filed H. Rept. 109-
522 and the bill was placed on the Union Calendar.
H.R. 6427, a bill to increase the amount in certain funding agreements
relating to patents and nonprofit organizations to be used for
scientific research, development, and education, and for other
purposes
Summary.--Introduced by Representative Tom Latham, H.R.
6427 increases the statutory royalty stream for smaller
government entities which partner with nonprofit organizations
under the Bayh-Dole Act to license patented inventions.
Legislative History.--On December 6, 2006, the House passed
H.R. 6427 without amendment by voice vote.
RESOLUTIONS REFERRED TO THE FULL COMMITTEE
H. Res. 210, supporting the goals of World Intellectual Property Day,
and recognizing the importance of intellectual property in the
United States and worldwide
Summary.--Introduced by Representative F. James
Sensenbrenner, Jr., H. Res. 210 expresses support for the goals
of World Intellectual Property Day (April 26, 2005) to promote,
inform, and teach the importance of intellectual property as a
tool for economic, social, and cultural development. The
resolution also congratulates the World Intellectual Property
Organization for its work in this regard.
Legislative History.--On April 20, 2005, the Committee met
in open session and ordered favorably reported the bill,
without amendment, by voice vote. On April 26, 2005, the
Committee reported the bill (H. Rept. 109-53). On April 28,
2005, the House passed the bill, without amendment, by a roll
call of 315-0.
H. Res. 420, directing the Attorney General to transmit to the House of
Representatives documents relating to the disclosure of the
identity and employment of Ms. Valerie Plame
Summary.--Congressman Rush Holt introduced H. Res. 420 on
July 29, 2005. The resolution sought to direct the Attorney
General to transmit to the House of Representatives documents
in his possession relating to the disclosure of the identity
and employment of Ms. Valerie Plame.
Legislative History.--H. Res. 420 was referred to the House
Judiciary Committee on July 29, 2005. On September 14, 2005,
the Judiciary Committee held a markup and ordered H. Res. 420
reported adversely by a vote of 15-11. The Committee filed H.
Rept. 109-230 on September 22, 2005, and the resolution was
placed on the House Calendar.
H. Res. 423, Honoring and recognizing the distinguished service,
career, and achievements of Chief Justice William Hubbs
Rehnquist upon his death, and for other purposes
Summary.--Introduced by Representative F. James
Sensenbrenner, Jr., H. Res. 423 honors and recognizes the
distinguished service, career, and achievements of Chief
Justice William Hubbs Rehnquist upon his death, and for other
purposes.
Legislative History.--Introduced on September 6, 2005, H.
Res. 423 was considered by the House on September 7, 2005,
pursuant to a previous order. H. Res. 423 was agreed to without
amendment by voice vote.
H. Res. 547--Expressing the sense of the House of Representatives that
the United States Court of Appeals for the Ninth Circuit
deplorably infringed on parental rights in Fields v. Palmdale
School District
Summary.--H. Res. 547 provides ``[t]hat it is the sense of
the House of Representatives that--(1) the fundamental right of
parents to direct the education of their children is firmly
grounded in the Nation's Constitution and traditions; (2) the
Ninth Circuit's ruling in Fields v. Palmdale School District
undermines the fundamental right of parents to direct the
upbringing of their children; and (3) the United States Court
of Appeals for the Ninth Circuit should agree to rehear the
case en banc in order to reverse this constitutionally infirm
ruling.''
Legislative History.--H. Res. 547 was introduced by Rep.
Tim Murphy on November 10, 2005. On November 16, 2005, H. Res.
547 was considered under suspension of the rules, passing the
House by a vote of 320 to 91.
H. Res. 655--Honoring the life and accomplishments of Coretta Scott
King and her contributions as a leader in the struggle for
civil rights and expressing condolences to the King Family
Summary.--H. Res. 655 honors the life and accomplishments
of Coretta Scott King and her contributions as a leader in the
struggle for civil rights and expresses condolences to the King
Family. Mrs. Coretta Scott King was the wife of the late
Reverend Dr. Martin Luther King, Jr. who became one of our
country's most visible members of the civil rights movement,
carrying on her husband's legacy after his death. Mrs. Coretta
Scott King led the campaign to recognize her late husband's
birthday as a national holiday and established the Martin
Luther King, Jr. Center for Non-Violent Social Change, the
first institution established in the memory of an African
American and which houses our country's largest archive of
documents from the Civil Rights Movement.
Legislative History.--H. Res. 655 was introduced as a
privileged resolution on January 31, 2006, by Chairman
Sensenbrenner. The resolution was agreed to by the House by
voice vote on February 1, 2006.
H. Res. 724, Honoring Leonidas Ralph Mecham, Director of the
Administrative Office of the United States Courts and Secretary
of the Judicial Conference of the United States
Summary.--H. Res. 724 recognizes Mr. Mecham for his more
than 20 years of outstanding public service to the Federal
judiciary and to the nation on the occasion of his retirement.
Legislative History.--On March 15, 2006, the Committee met
in open session and ordered the bill favorably reported,
without amendment, by voice vote. On April 27, 2006, the
Committee reported the bill (H. Rept. 109-446).
H. Con. Res. 208--Recognizing the 50th Anniversary of Rosa Louis Parks'
refusal to give up her seat on the bus and the subsequent
desegregation of American Society
Summary.--H. Con. Res. 208 recognizes the 50th Anniversary
of Rosa Louise Parks' refusal to give up her seat on the bus
and the subsequent desegregation of American Society. Fifty
years ago, through one courageous act, Rosa Parks inspired the
citizens of Montgomery, Alabama to stand up to the injustice
that had become commonplace among citizens. Her single act led
to the 381-day Montgomery Bus Boycott and eventually to the
desegregation of Montgomery, Alabama. Her actions sparked the
national civil rights movement that helped lead to the equal
treatment of all citizens.
Legislative History.--H. Con. Res. 208 was introduced by
House Judiciary Committee Ranking Member John Conyers on July
13, 2005. It was reported out of the House Judiciary Committee
by voice vote on July 27, 2005. A motion to suspend the rules
was agreed to and the resolution was passed by the House by
voice vote on September 14, 2005. The resolution was agreed to
in the Senate without amendment and with a preamble by
unanimous consent on November 18, 2005.
H. Con. Res. 245--Expressing the sense of Congress that the United
States Supreme Court should speedily find the use of the Pledge
of Allegiance in schools to be consistent with the Constitution
of the United States
Summary.--H. Con. Res. 245 provides that ``it is the sense
of Congress that--(1) judicial rulings by the United States
Court of Appeals for the 4th and 9th circuits have split on the
issue of whether the Constitution allows the recitation of the
Pledge of Allegiance in schools; (2) the ruling by the United
States Court of Appeals for the 4th circuit correctly finds the
Constitution does allow such a recitation; and (3) the United
States Supreme Court should at the earliest opportunity resolve
this conflict among the circuits in a manner which recognizes
the importance and Constitutional propriety of the recitation
of the Pledge of Allegiance by school children.'' This
resolution responded to the Eastern District of California's
holding that school district policies of voluntary, teacher-led
recitations of the Pledge violate the Establishment Clause.
Legislative History.--H. Con. Res. 245 was introduced by
Rep. Darrell Issa on September 15, 2005. On September 28, 2005,
H. Con. Res. 245 was considered under suspension of the rules,
and passed the House by a vote of 383 to 31 on September 29,
2005.
H. Con. Res. 367--Honoring and praising the National Society of the
Sons of the American Revolution on the 100th anniversary of
being granted its Congressional Charter
Summary.--H. Con. Res. 367 provides ``[t]hat the Congress--
(1) recognizes the 100th anniversary of the historic
Congressional Charter of the National Society of the Sons of
the American Revolution; and (2) honors and praises the
National Society of the Sons of the American Revolution on the
occasion of its anniversary for its work to perpetuate and
honor the memory of the brave men who fought to gain our
freedom during the Revolutionary War and for the Society's
unfailing devotion to our Nation's youth.''
Legislative History.--H. Con. Res. 367 was introduced by
Rep. Howard Coble on March 29, 2006. On June 20, 2006, H. Con.
Res. 367 was considered under suspension of the rules, and
passed the House by a voice vote. On June 26, 2006, H. Con.
Res. 367 passed the Senate by unanimous consent.
SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY
LAMAR S. SMITH, Texas, Chairman
HOWARD BERMAN, California HENRY J. HYDE, Illinois
JOHN CONYERS, California ELTON GALLEGLY, California
RICK BOUCHER, Virginia BOB GOODLATTE, Virginia
ZOE LOFGREN, California WILLIAM L. JENKINS, Tennessee
MAXINE WATERS, California SPENCER BACHUS, Alabama
MARTIN T. MEEHAN, Massachusetts BOB INGLIS, South Carolina
ROBERT WEXLER, Florida RIC KELLER, Florida
ANTHONY D. WIENER, New York DARRELL E. ISSA, California
ADAM B. SCHIFF, California CHRIS CANNON, Utah
LINDA T. SANCHEZ, California MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
Tabulation of subcommittee legislation and activity
Public:
Legislation referred to the Subcommittee..................... 101
Legislation on which hearings were held...................... 9
Legislation reported favorably to the full Committee......... 15
Legislation reported adversely to the full Committee......... 0
Legislation reported without recommendation to the full
Committee.................................................. 0
Legislation reported as original measure to the full
Committee.................................................. 0
Legislation discharged from the Subcommittee................. 3
Legislation pending before the full Committee................ 3
Legislation reported to the House............................ 10
Legislation discharged from the Committee.................... 0
Legislation pending in the House............................. 3
Legislation passed by the House.............................. 9
Legislation pending in the Senate............................ 5
Legislation vetoed by the President (not overridden)......... 0
Legislation enacted into Public Law.......................... 3
Legislation enacted into Public Law as part of other
legislation................................................ 1
Days of legislative hearings................................. 9
Days of oversight hearings................................... 20
Jurisdiction of the Subcommittee
The Subcommittee on Courts, the Internet, and Intellectual
Property has jurisdiction over the following subject matters:
copyright, patent and trademark law, information technology,
administration of U.S. courts, Federal Rules of Evidence and
Appellate Procedure, judicial ethics, other appropriate matters
as referred by the Chairman, and relevant oversight.
Legislative Activities
COURTS
H.R. 211, the Ninth Circuit Judgeship and Reorganization Act of 2005
Summary.--Introduced by Representative Michael K. Simpson,
H.R. 211 authorizes the appointment of additional Federal
circuit judges and reorganizes the Ninth Judicial Circuit into
a ``new'' Ninth Circuit (California, Guam, Hawaii, and the
Northern Mariana Islands), the Twelfth Circuit (Arizona,
Nevada, Idaho, and Montana), and Thirteenth Circuit (Alaska,
Oregon, and Washington State).
Legislative History.--Introduced on January 4, 2005, H.R.
211 was referred to the Subcommittee on March 2, 2005. No
action was taken on H.R. 211. A related measure, H.R. 4093, the
``Federal Judgeship and Administrative Efficiency Act of
2005,'' was subsequently introduced. See H.R. 4093 for further
action.
H.R. 212, the Ninth Circuit Court of Appeals Judgeship and
Reorganization Act of 2005
Summary.--Introduced by Representative Michael K. Simpson,
H.R. 212 authorizes the appointment of additional Federal
circuit judges and reorganizes the Ninth Judicial Circuit into
a ``new'' Ninth Circuit (Arizona, California, and Nevada) and
Twelfth Circuit (Alaska, Guam, Hawaii, Idaho, Montana, Northern
Mariana Islands, Oregon, and Washington).
Legislative History.--Introduced on January 4, 2005, H.R.
212 was referred to the Subcommittee on March 2, 2005. No
action was taken on H.R. 212. A related measure, H.R. 4093, the
``Federal Judgeship and Administrative Efficiency Act of
2005,'' was subsequently introduced. See H.R. 4093 for further
action.
H.R. 232, to authorize an additional district judgeship for the
district of Nebraska
Summary.--Introduced by Representative Lee Terry, H.R. 232
would authorize one new permanent U.S. judgeship for the
district of Nebraska.
Legislative History.--Introduced on January 4, 2005, H.R.
232 was referred to the Subcommittee on March 2, 2005. No
action was taken on H.R. 232, although its contents were
included in H.R. 4093, the ``Federal Judgeship and
Administrative Efficiency Act of 2005.'' See H.R. 4093 for
further action.
H.R. 435, the Equal Access to Justice Reform Act of 2005
Summary.--Introduced by Representative Donald A. Manzullo,
H.R. 435 amends the Equal Access to Justice Act (EAJA) by
eliminating the ``substantial justification'' defense and
strengthening the ability of prevailing parties in civil
litigation with agencies of the Federal government to recoup
their attorney's fees.
Legislative History.--Introduced on February 1, 2005, H.R.
435 was referred to the Committee on the Judiciary, and in
addition to the Committee on Small Business, for a period to be
subsequently determined by the Speaker, in each case for
consideration of such provisions as fall within the
jurisdiction of the committee concerned. The bill was referred
to the Subcommittee on March 2, 2005. The Subcommittee
conducted a legislative hearing, pursuant to notice, on the
``Equal Access to Justice Reform Act of 2005,'' on May 23,
2006. The following witnesses appeared and submitted statements
for the record: Ryan W. Bounds, Chief of Staff, Office of Legal
Policy, U.S. Department of Justice; Michael P. Farris, J.D.,
Chairman and General Counsel, Home School Legal Defense
Association (HSLDA); Jonathan Hiatt, General Counsel, American
Federation of Labor-Congress of Industrial Organizations (AFL-
CIO); and James M. Knott, Sr., President and Chairman of the
Board, Riverdale Mills Corporation. No further action was taken
on H.R. 435.
H.R. 1038, the Multidistrict Litigation Restoration Act of 2005
Summary.--Introduced by Representative F. James
Sensenbrenner, Jr., H.R. 1038 would allow a designated U.S.
district court (a so-called ``transferee'' court) under the
multidistrict litigation statute (28 U.S.C. Sec. 1407) to
retain jurisdiction over referred cases arising from the same
fact scenario for purposes of determining liability and
punitive damages, or to send them back to the respective courts
from which they were transferred. It also would function as a
technical fix to a ``disaster'' litigation statute enacted
during the 107th Congress.
Legislative History.--On March 3, 2005, the Subcommittee
met in open session and forwarded the bill to full Committee,
without amendment, by voice vote. On March 9, 2005, the
Committee ordered the bill favorably reported, without
amendment, by voice vote. Eight days later the Committee
reported the bill (H. Rept. 109-24). On April 19, 2005, the
House passed the bill, without amendment, by voice vote. The
following day the bill was received in the Senate, read twice,
and referred to the Senate Committee on the Judiciary.
H.R. 1178, to create four new permanent judgeships for the eastern
district of California
Summary.--Introduced by Representative William M. Thomas,
H.R. 1178 would authorize four new permanent U.S. judgeships
for the eastern district of California.
Legislative History.--Introduced on March 8, 2005, H.R.
1178 was referred to the Subcommittee on May 10, 2005. No
action was taken on H.R. 1178, although its contents were
included in H.R. 4093, the ``Federal Judgeship and
Administrative Efficiency Act of 2005.'' See H.R. 4093 for
further action.
H.R. 1229, the Federal Consent Decree Fairness Act
Summary.--Introduced by Representative Roy Blunt, H.R. 1229
would amend the Federal judicial code to limit the duration of
Federal consent decrees to which State and local governments
are a party, and for other purposes.
Legislative History.--Introduced on March 10, 2005, H.R.
1229 was referred to the Committee on the Judiciary. On May 10,
2005, the ``Federal Consent Decree Fairness Act'' was referred
to the Subcommittee, which conducted a legislative hearing,
pursuant to notice, on June 21, 2005. The following witnesses
appeared and submitted statements for the record:
Representative Roy Blunt, Majority Whip, U.S. House of
Representatives; the Honorable Nathaniel R. Jones, Blank Rome
LLP; The Honorable David Goetz, Commissioner, Department of
Finance and Administration, State of Tennessee; and David
Schoenbrod, Professor, New York Law School. No further action
was taken on H.R. 1229.
H.R. 1458, to require any Federal or State court to recognize any
notarization made by a notary public licensed by a State other
than the State where the court is located when such
notarization occurs in or affects interstate commerce
Summary.--Introduced by Representative Robert B. Aderholt,
H.R. 1458 proposed to require any Federal or State court to
recognize any notarization made by a notary public licensed by
a State other than the State where the court is located when
such notarization occurs in or affects interstate commerce.
Legislative History.--Introduced on April 5, 2005, H.R.
1458 was referred to the Committee on the Judiciary. On May 10,
2005, the measure was referred to the Subcommittee, which
conducted a legislative hearing, pursuant to notice, on March
9, 2006. The following witnesses appeared and submitted
statements for the record: Timothy S. Reiniger, Esq., Executive
Director, National Notary Association; Malcolm L. Morris, Esq.,
Professor and Associate Dean, College of Law, Northern Illinois
University; Dean M. Googasian, Esq., The Googasian Firm, P.C. ;
and Michael Frank Turner, Owner, Freedom Court Reporting, Inc.
On May 24, 2006, the Subcommittee met in open session and
ordered favorably reported H.R. 1458, with an amendment, by
voice vote.
H.R. 2422, to allow media coverage of court proceedings
Summary.--Introduced by Representative Steve Chabot, H.R.
2422 would authorize the presiding judge of a U.S. appellate
court or U.S. district court to permit the photographing,
electronic recording, broadcasting, or televising to the public
of court proceedings over which that judge presides.
Legislative History.--Introduced on May 18, 2005, H.R. 2422
was referred to the Subcommittee on July 1, 2005. The text of
the bill was incorporated in section 22 of H.R. 1751, the
``Secure Access to Justice and Court Protection Act of 2005,''
which the House passed with amendment by a roll call of 375-45
on November 9, 2005. The following day H.R. 1751 was read twice
and referred to the Senate Committee on the Judiciary.
H.R. 2955, the Intellectual Property Jurisdiction Clarification Act of
2006
Summary.--Introduced by Representative Lamar S. Smith, H.R.
2955 amends the Federal judicial code to clarify that the Court
of Appeals for the Federal Circuit has exclusive jurisdiction
of appeals relating to patents and plant variety protection,
and for other purposes.
Legislative History.--Introduced on June 16, 2005, H.R.
2955 was referred to the Committee on the Judiciary. On June
27, 2005, the measure was referred to the Subcommittee, which
met in open session on June 28, 2005, and ordered H.R. 2955
favorably reported, without amendment, by voice vote. On March
2, 2006, the Committee met in open session and ordered
favorably reported H.R. 2955, with an amendment, by voice vote.
The Committee reported the bill on April 5, 2006 (H. Rept. 109-
407).
H.R. 3125, the Ninth Circuit Court of Appeals Judgeship and
Reorganization Act of 2005
Summary.--Introduced by Representative Michael K. Simpson,
H.R. 3125 authorizes the appointment of additional Federal
circuit judges and reorganizes the Ninth Judicial Circuit into
the ``new'' Ninth Circuit (California, Guam, Hawaii, and
Northern Mariana Islands) and Twelfth Circuit (Alaska, Arizona,
Idaho, Montana, Nevada, Oregon, and Washington).
Legislative History.--Introduced on June 29, 2005, H.R.
3125 was referred to the Committee on the Judiciary. On August
23, 2005, the bill was referred to the Subcommittee. No action
was taken on the bill. A related measure, H.R. 4093, the
``Federal Judgeship and Administrative Efficiency Act of
2005,'' was subsequently introduced. See H.R. 4093 for further
action.
H.R. 3650, the Federal Judiciary Emergency Special Sessions Act of 2005
Summary.--Introduced by Representative F. James
Sensenbrenner, Jr., H.R. 3650 authorizes United States courts
to conduct business outside of their respective geographic
domains during emergency conditions, and for other purposes.
Legislative History.--Introduced on September 6, 2005, H.R.
3650 was referred to the Committee on the Judiciary. On
September 7, 2005, the House passed H.R. 3650 without amendment
by a roll call vote of 409-0. The Senate received and passed
H.R. 3650 without amendment by unanimous consent on September
8, 2005. H.R. 3650 was signed by the President on September 9,
2005, and became Pub. L. No. 109-63.
H.R. 3729, the Federal Judiciary Emergency Tolling Act of 2006
Summary.--Introduced by Representative F. James
Sensenbrenner, Jr., H.R. 3729 empowers the chief judge of a
Federal judicial district or circuit to delay or toll time
deadlines for any class of cases pending or thereafter filed in
a district, circuit, or bankruptcy court in the wake of a
natural disaster or other emergency situation.
Legislative History.--On November 9, 2005, the Committee
met in open session and ordered the bill favorably reported,
with amendment, by voice vote. On February 8, 2006, the
Committee reported the bill as amended favorably (H. Rept. 109-
371). On July 17, 2006, the House passed the bill, as amended,
by a roll call of 363-0. The following day the bill was
received in the Senate, read twice, and referred to the Senate
Committee on the Judiciary.
H.R. 3953, to authorize four permanent and one temporary additional
judgeships for the middle district of Florida, and three
additional permanent judgeships for the southern district of
Florida
Summary.--Introduced by Representative Katherine Harris,
H.R. 3953 would authorize four permanent judgeships and one
temporary additional judgeship for the Middle District of
Florida, and three additional permanent judgeships for the
Southern District of Florida.
Legislative History.--Introduced on September 29, 2005,
H.R. 3953 was referred to the Subcommittee on October 17, 2005.
No action was taken on H.R. 3953, although its contents were
included in H.R. 4093, the ``Federal Judgeship and
Administrative Efficiency Act of 2005.'' See H.R. 4093 for
further action.
H.R. 4093, the Federal Judgeship and Administrative Efficiency Act of
2005
Summary.--Introduced by Representative F. James
Sensenbrenner, Jr., H.R. 4093 provides for the appointment of
additional Federal circuit and district judges and reconfigures
the Ninth Circuit Court of Appeals.
Legislative History.--On October 24, 2005, H.R. 4093 was
referred to the Subcommittee, which discharged the measure on
October 27, 2005. On October 27, 2005, the Committee on the
Judiciary met in open session and ordered favorably reported
H.R. 4093, with an amendment, by a roll call vote of 22-12. The
Committee reported the bill on February 8, 2006 (H. Rept. 109-
373). The text of H.R. 4093 was incorporated in title V,
subtitles B, C, and D (sections 5202-5212) of H.R. 4241, the
``Deficit Reduction Act of 2005.'' On November 18, 2005, the
House passed H.R. 4241, as amended, by a roll call of 217-215.
H.R. 4311, to amend section 105(b)(3) of the Ethics in Government Act
of 1978 (5 U.S.C. App)
Summary.--H.R. 4311 would make permanent a provision that
allows Federal judges to redact, under prescribed conditions,
sensitive information from their annual financial disclosure
reports
Legislative History.--On November 14, 2005, the bill was
referred to the Committee on the Judiciary. On December 7,
2005, under suspension of the rules, the House passed the bill,
with amendment, by voice vote. Five days later the bill was
received in the Senate. On January 27, 2006, the bill was read
twice and referred to the Senate Committee on Homeland Security
and Governmental Affairs, which discharged H.R. 4311 by
unanimous consent on June 7, 2006. On the same day the bill was
laid before the Senate by unanimous consent and was passed by
the Senate, with amendment, by unanimous consent. On June 8,
2006, a message on Senate action was sent to the House. In
addition, the text of H.R. 4311 was incorporated in section 16
of H.R. 1751, the ``Secure Access to Justice and Court
Protection Act of 2005,'' which the House passed with amendment
on November 9, 2005, by a roll call of 375-45. On November 10,
2005, H.R. 1751 was received in the Senate, read twice, and
referred to the Senate Committee on the Judiciary. See also S.
1558, below, for related developments.
H.R. 4496, to amend title 28, United States Code, to provide for
certain transportation and subsistence in cases where district
courts are holding special sessions as a result of emergency
conditions
Summary.--Introduced by Representative F. James
Sensenbrenner, Jr., H.R. 4496 amends the Federal Judiciary
Emergency Special Sessions Act of 2005 to require a district
court holding special sessions due to emergency conditions to
provide for certain prisoner transportation and subsistence
allowances.
Legislative History.--Introduced on December 8, 2005, H.R.
4496 was referred to the Subcommittee on February 16, 2006. Its
text was included in section 1198 of H.R. 3402, the Department
of Justice Authorization of Appropriations Act, 2006-2009 (H.
Rept 109-233), which the House passed, with amendment, by a
roll call of 415-4 on September 28, 2005. On December 16, 2005,
the Senate passed the bill with an amendment by unanimous
consent. The following day, on motion offered by Representative
F. James Sensenbrenner, Jr., the House agreed to the Senate
amendment by voice vote. The President signed the bill on
January 5, 2006. It is Pub. L. 109-162.
H.R. 5418, to establish a pilot program in certain United States
district courts to encourage enhancement of expertise in patent
cases among district judges
Summary.--Introduced by Representative Darrell E. Issa,
H.R. 5418 authorizes the establishment of a pilot program in
certain United States district courts to encourage enhancement
of expertise in patent cases among district judges.
Legislative History.--H.R. 5418 was introduced on May 18,
2006, and was referred to the Subcommittee on June 5, 2006. On
July 27, 2006, the Subcommittee met in open session and ordered
favorably reported H.R. 5418, without amendment, by voice vote.
The full committee considered H.R. 5418 on September 13, 2006,
and ordered the bill favorably reported, with an amendment, by
voice vote. The bill then passed the House under suspension of
the rules and referred to the Senate Judiciary.
H.R. 5440, the Federal Courts Jurisdiction Clarification Act of 2006
Summary.--Introduced by Representative Lamar S. Smith, H.R.
5440 amends the Federal judicial code with respect to
jurisdictional rules and the amount in controversy in civil
litigation concerning: (1) denial of district court original
jurisdiction of an action between a citizen of a state and a
resident alien domiciled in the same state; (2) citizenship
rules for corporations and insurance companies with foreign
contacts; (3) removal procedures for civil and criminal actions
and summary remand; (4) indexing the amount in controversy; and
(5) the use of declarations to specify damages.
Legislative History.--H.R. 5440 was introduced on May 22,
2006, and was referred to the Subcommittee on May 23, 2006. On
May 24, 2006, the Subcommittee met in open session and ordered
favorably reported H.R. 5440, without amendment, by voice vote.
H. Res. 357, Honoring Justice Sandra Day O'Connor
Summary.--Introduced by Representative Ginny Brown-Waite,
H. Res. 357 acknowledges and honors Justice Sandra Day O'Connor
on the occasion of her retirement from the U.S. Supreme Court.
Legislative History.--Introduced on July 12, 2005, H. Res.
357 was referred to the Subcommittee on August 23, 2005. On
March 1, 2006, the House passed H. Res. 357, under suspension
of the rules, without amendment by a roll call vote of 410-0.
S. 1558, to amend the Ethics in Government Act of 1978 to protect
family members of filers from disclosing sensitive information
in a public filing and to extend for four years the authority
to redact financial disclosure statements of judicial employees
and judicial officers
Summary.--Introduced by Senator Susan M. Collins, S. 1558
would amend the ``Ethics in Government Act of 1978'' to protect
family members of filers from disclosing sensitive information
in a public filing and to extend for four years the authority
to redact financial disclosure statements of judicial employees
and judicial officers.
Legislative History.--Introduced in the Senate on July 29,
2005, S. 1558 was referred to the Senate Committee on Homeland
Security and Governmental Affairs, which discharged the measure
on November 10, 2005. On November 10, 2005, the Senate adopted
two amendments to S. 1558, which provided a complete substitute
and amended the title of the bill. The Senate then passed S.
1558, as amended, by unanimous consent. On November 14, 2005,
S. 1558 was referred to the Committee on the Judiciary. On
February 6, 2006, S. 1558 was referred to the Subcommittee. See
also H.R. 4311 for related developments.
H. Res. 916, Impeaching Manuel L. Real, judge of the United States
District Court for the District of California, for high crimes
and misdemeanors
Summary.--Introduced by Representative F. James
Sensenbrenner, Jr., H. Res. 916 resolves to impeach Manuel L.
Real, judge of the United States District Court for the Central
District of California, for high crimes and misdemeanors.
Legislative History.--On September 21, 2006, the
Subcommittee met in open session and held a legislative hearing
on H. Res. 916.
INTELLECTUAL PROPERTY
Copyrights
H.R. 1036, the ``Copyright Royalty Judges Program Technical Corrections
Act''
Summary.--Introduced by Representative Lamar Smith, H.R.
1036 makes stylistic, typographical, and clarifying changes to
the ``Copyright Royalty and Distribution Reform Act of 2004''
(Pub. L. 108-419), which overhauled the administrative
construct by which copyright royalties are determined and
distributed pursuant to various compulsory licenses under the
Copyright Act.
Legislative History.--On March 2, 2005, H.R. 1036 was
referred to the Subcommittee. The next day the Subcommittee met
in open session ordered the bill favorably reported, without
amendment, by voice vote. On March 9, 2005, the Committee met
in open session and ordered the bill favorably reported,
without amendment, by voice vote. On April 28, 2005, the
Committee reported the bill (H. Rept. 109-64). On November 16,
2005, the House passed the bill, with an amendment, by voice
vote. On June 29, 2006, the Senate Committee on the Judiciary
met in open session and conducted a markup of the bill. On July
13, 2006, the Senate Judiciary Committee ordered the bill
favorably reported, with an amendment, by voice vote. The bill
was reported without written report. On July 19, 2006, the
Senate passed the bill with an amendment by unanimous consent.
On September 25, 2006, the House passed the same bill. On
October 6, 2006, H.R. 1036 was signed into law (Pub. L. 109-
303).
H.R. 1037, to make technical corrections to title 17, United States
Code
Summary.--Introduced by Representative Lamar Smith, H.R.
1037 makes stylistic, typographical, and clarifying changes to
the ``Satellite Home Viewer Extension and Reauthorization Act
of 2004'' (Pub. L. 109-447, title IX), which extended the
compulsory license that allows satellite carriers to transmit
copyrighted programming to their customers for another five
years.
Legislative History.--On March 3, 2005, the Subcommittee
met in open session ordered the bill favorably reported,
without amendment, by voice vote. On March 9, 2005, the
Committee met in open session and ordered the bill favorably
reported, without amendment, by voice vote. On May 10, 2005,
the Committee reported the bill (H. Rept. 109-75).
H.R. 5055, to amend title 17, United States Code, to provide protection
for fashion design
Summary.--Introduced by Representative Bob Goodlatte, H.R.
5055 extends copyright protection to fashion designs, but
excludes from such protection fashion designs that are embodied
in a useful article that was made public by the designer or
owner more than three months before the registration of
copyright application.
Legislative History.--On July 27, 2006, the Subcommittee
met in open session and held a legislative hearing on H.R.
5055. The following witnesses appeared and submitted a written
statement for the record: Jeffrey Banks, fashion designer, on
behalf of the Council of Fashion Designers of America; David
Wolfe, Creative Director, The Doneger Group; Susan Scafidi,
Visiting Professor, Fordham Law School and Associate Professor,
Southern Methodist University; and Christopher Sprigman,
Associate Professor, University of Virginia School of Law.
H.R. 5439, the Orphan Works Act of 2006
Summary.--Introduced by Representative Lamar Smith, H.R.
5439 limits the remedies available in a copyright infringement
action for unlocatable copyright owners under prescribed
conditions. The legislation also requires the Register of
Copyrights to conduct an inquiry with respect to remedies for
copyright infringement claims seeking limited monetary relief,
including consideration of alternatives to disputes currently
heard in the U.S. district courts.
Legislative History.--The Subcommittee held an oversight
hearing on the issues raised by the legislation on March 8,
2006. On May 24, 2006, the Subcommittee met in open session and
ordered favorably reported H.R. 5439, without an amendment, by
voice vote.
H.R. 5553, the Section 115 Reform Act of 2006
Summary.--Introduced by Representative Lamar Smith, H.R.
5553 updates Section 115 of the Copyright Act by setting forth
new provisions governing compulsory licenses for digital
phonorecord deliveries and hybrid offerings. The legislation is
designed to modernize the licensing system for digital music
services while ensuring that royalties currently being held in
escrow are paid to songwriters. The legislation also requires
the Register of Copyrights to designate a General Designated
Agent to grant and administer licenses and collect and
distribute royalties payable for the use of musical works
licensed under this Act.
Legislative History.--On June 8, 2006, the Subcommittee met
in open session and ordered favorably reported H.R. 5553,
without amendment, by a voice vote.
H.R. 5593, the Royalty Distribution Clarification Act of 2006
Summary.--Introduced by Representative Lamar Smith, H.R.
5593 modifies existing law by allowing Copyright Royalty
Judges, upon the motion of a claimant and after publication of
a request for responses, to make a partial distribution of
cable and satellite royalty fees at any time after the filing
of claims for distribution if no eligible claimant has stated a
reasonable objection.
Legislative History.--The legislation was introduced on
June 13, 2006. No hearings were held on the bill, but the
Senate Committee on the Judiciary included its text as an
amendment to H.R. 1036 during a July 13, 2006, markup. See H.R.
1036 for further action.
S. 167, the Family Entertainment and Copyright Act of 2005
Summary.--Introduced by Senator Hatch, S. 167 contains four
titles. Title I is the Artists' Rights and Theft Prevention Act
of 2005. The Act amends the Federal criminal code to prohibit
the use or attempted use of a video camera to make a copy of a
motion picture or other copyrighted audiovisual work from a
performance of such work in a movie theater and sets forth
penalties for such violations. The Act also establishes
criminal penalties for willful copyright infringement by the
distribution of a computer program, musical work, motion
picture or other audiovisual work, or sound recording being
prepared for commercial distribution by making it available on
a computer network accessible to members of the public.
Title II is the Family Movie Act of 2005. The Act creates
an exemption from copyright infringement for the creation or
use of certain technology to skip over content in authorized
copies of motion pictures. The legislation also amends the
Trademark Act of 1946 to protect from liability for trademark
infringement persons who engage in such acts and manufacturers
of such technology.
Title III is the National Film Preservation Act of 2005 and
the National Film Preservation Foundation Reauthorization Act
of 2005. The National Film Preservation Act amends the National
Film Preservation Act of 1996 to expand the use of the National
Film Registry seal and directs the Librarian of Congress, in
consultation with the National Film Registry Board, to expand
film preservation efforts. The National Film Preservation
Foundation Act modifies the structure of the National Film
Preservation Foundation.
Title IV is the Preservation of Orphan Works Act. The Act
expands the use of copyrighted works by libraries or archives
during the last 20 years of any term of copyright of a
published work.
Legislative History.--Introduced by Senator Orrin Hatch on
January 25, 2005, S. 167 was passed by the Senate on February
1, 2005. On March 3, 2005, the Subcommittee met in open session
and ordered the bill favorably reported, without amendment, by
a voice vote. On March 9, 2005, the full Committee met in open
session and ordered the bill favorably reported, without
amendment, by voice vote. The joint referral to the House
Administration Committee was discharged on April 12, 2005. On
April 19, 2005, the bill was passed by the full House without
amendment by a voice vote. On April 27, 2005, the legislation
was signed into law as Pub. L. 109-9.
S. 1785, the Vessel Hull Design Protection Amendments of 2005
Summary.--Introduced by Senator John Cornyn, S. 1785 amends
the ``Vessel Hull Design Protection Act'' by specifying that
the design of both the vessel hull and deck are protected under
chapter 13 of the U.S. Copyright Act. Current law only protects
the design of the vessel hull, but not the deck.
Legislative History.--On November 18, 2005, the Senate
passed the bill without amendment by voice vote (H. Rept. 109-
33). On March 1, 2006, the Subcommittee met in open session and
ordered favorably reported S. 1785 without amendment by a voice
vote. On December 6, 2006, the House passed the bill with an
amendment (including the text of H. Con Res. 319 and H.R. 5120)
by voice vote.
Patents and Trademarks
H.R. 683, the Trademark Dilution Revision Act of 2005
Summary.--Introduced by Representative Lamar Smith, H.R.
683 establishes a likelihood-of-harm threshold in dilution
cases and clarifies other definitions and provisions in the
Federal Trademark Dilution Act.
Legislative History.--On February 17, 2005, the
Subcommittee held a legislative hearing on H.R. 683. The
following witnesses appeared and submitted written statements
for the record: Anne Gundelfinger, President and Chairperson of
the Board, International Trademark Association (INTA); Mark A.
Lemley, William H. Neukom Professor of Law, Stanford
University; William G. Barber, Partner, Fulbright & Jaworski,
LLP; and Marvin Johnson, Legislative Counsel, American Civil
Liberties Union (ACLU). On March 3, 2005, the Subcommittee met
in open session and ordered favorably reported H.R. 683, with
an amendment, by voice vote. On March 9, 2005, the Committee
met in open session and ordered favorably reported H.R. 683, as
amended, by voice vote (H. Rept. 109-23). On April 19, 2005,
the House passed H.R. 683, with an amendment, by a roll call of
411-8. The following day H.R. 683 was received in the Senate,
read twice, and referred to the Senate Committee on the
Judiciary. On February 27, 2006, the Committee met in open
session and ordered favorably reported H.R. 683, with an
amendment and without written report, by voice vote. On March
8, 2006, the Senate passed H.R. 683, with an amendment, by
unanimous consent. On September 25, 2006, the House suspended
the rules and agreed to the Senate amendment by voice vote.
H.R. 683 became Pub. L. No. 109-312 on October 6, 2006.
H.R. 2791, the United States Patent and Trademark Fee Modernization Act
of 2005
Summary.--Introduced by Representative F. James
Sensenbrenner, Jr., H.R. 2791 makes permanent the ``new''
patent and trademark fee schedule enacted in the 108th
Congress, provides certain protections for small business and
individual patentees, and creates a refund mechanism to ensure
that the U.S. Patent and Trademark Office remits unspent
revenue in a given fiscal year to the inventors who fund the
system.
Legislative History.--On June 28, 2005, the Subcommittee
met in open session and ordered favorably reported H.R. 2791,
without amendment, by voice vote. On November 9, 2005, the
Committee met in open session and ordered favorably reported
H.R. 2791, without amendment, by voice vote. On February 8,
2006, the Committee reported the bill (H. Rept. 109-372). No
further action was taken on the (freestanding) bill; however,
the text of H.R. 2791 that reauthorizes the fee schedule from
the 108th Congress was incorporated in title II of H.R. 5672
(H. Rept. 109-280), the Science, State, Justice, Commerce and
Related Agencies Appropriations Act, 2007, which the House
passed on June 29, 2006, with amendments, by a roll call of
393-23. On July 13, 2006, the Senate Committee on
Appropriations reported favorably the bill, with amendments, by
voice vote (S. Rept. 109-280).
H.R. 2795, the Patent Reform Act of 2005
Summary.--Introduced by Representative Lamar Smith, H.R.
2795 makes several changes to the U.S. patent system. The major
provisions include defining patent ownership based on the
status of the inventor who files first (rather than who invents
first); permitting the use of third-party prior-art submissions
to assist in the evaluation of novelty and non-obviousness; the
creation of a post-grant opposition system; greater expansion
of the inter partes reexamination system; and revision of the
inequitable conduct standard.
Legislative History.--On June 9, 2005, the Subcommittee
held a legislative hearing on H.R. 2795. The following
witnesses appeared and submitted written statements for the
record: Gary L. Griswold, President and Chief Intellectual
Property Counsel, 3M Innovative Properties Company, on behalf
of the American Intellectual Property Law Association (AIPLA);
Carl Gulbrandsen, Managing Director, Wisconsin Alumni Research
Foundation (WARF); Josh Lerner, Professor, Harvard Business
School; and Daniel B. Ravicher, Executive Director, Public
Patent Foundation (PUBPAT). No further action was taken on the
bill.
H.R. 4742, to allow the Director of the Patent and Trademark Office to
waive statutory provisions governing patent and trademarks in
certain emergencies
Summary.--Introduced by Representative Lamar Smith, H.R.
4742 amends title 35 by waiving certain statutory requirements
governing patents and trademarks (such as the filing of time-
sensitive maintenance fees) in emergency situations, including
natural disasters and terrorist attacks.
Legislative History.--On March 1, 2006 the Subcommittee met
in open session and ordered favorably reported H.R. 4742,
without amendment, by voice vote. On March 15, 2006, the
Committee met in open session and ordered favorably reported
H.R. 4742, unamended, by voice vote. The Committee reported the
bill on April 5, 2006 (H. Rept. 109-408). On December 5, 2006,
the House passed the bill without amendment by voice vote.
H.R. 5120, to amend title 35, United States Code, to conform certain
filing provisions within the Patent and Trademark Office
Summary.--Introduced by Representative William L. Jenkins,
H.R. 5120 authorizes the Patent and Trademark Office to accept
term-extension applications that deviate from the filing
requirements of section 156 of the Patent Act based on
``unintentional delay.''
Legislative History.--On September 14, 2006, pursuant to
notice, the Subcommittee met in open session and conducted a
legislative hearing on H.R. 5120. The following witnesses
appeared and submitted statements for the record: the Honorable
Jon W. Dudas, Under Secretary of Commerce for Intellectual
Property and Director of the U.S. Patent and Trademark Office;
Clive Meanwell Chief Executive Officer, The Medicines Company;
Kathleen D. Jaeger, President and Chief Executive Officer,
Generic Pharmaceutical Association (GphA); John R. Thomas,
Professor of Law, Georgetown University Law Center. The text of
H.R. 5120 was included as Sec. 202 of S. 1785, which the House
passed by voice vote on December 6, 2006.
H.R. 5618, to extend the patent term for the badge of the American
Legion Women's Auxiliary, and for other purposes
Summary.--Introduced by Representative Chris Cannon, H.R.
5618 extends the (design) patent term for the badge of the
American Legion Women's Auxiliary for 14 years.
Legislative History.--The text of H.R. 5618 was included in
section 1094 of S. 2766, the ``National Defense Authorization
Act for Fiscal Year 2007,'' which the Senate passed with
amendment by a roll call of 96-0 on June 22, 2006.
H.R. 5619, to extend the patent term for the badge of the American
Legion, and for other purposes
Summary.--Introduced by Representative Chris Cannon, H.R.
5619 extends the (design) patent term for the badge of the
American Legion for 14 years.
Legislative History.--The text of H.R. 5619 was included in
section 1094 of S. 2766, the ``National Defense Authorization
Act for Fiscal Year 2007,'' which the Senate passed with
amendment by a roll call of 96-0 on June 22, 2006.
H.R. 5620, to extend the patent term for the badge of the Sons of the
American Legion, and for other purposes
Summary.--Introduced by Representative Chris Cannon, H.R.
5620 extends the (design) patent term for the badge of the Sons
of the American Legion for 14 years.
Legislative History.--The text of H.R. 5620 was included in
section 1094 of S. 2766, the ``National Defense Authorization
Act for Fiscal Year 2007,'' which the Senate passed with
amendment by a roll call of 96-0 on June 22, 2006.
H. Con. Res. 53, Expressing the sense of Congress regarding the
issuance of the 500,000th design patent by the United States
Patent and Trademark Office
Summary.--Introduced by Representative John Conyers, H.
Con. Res. 53 acknowledges the DaimlerChrysler Corporation and
its employees for receiving the 500,000th design patent issued
by the Patent and Trademark Office for their work on the
Chrysler ``Crossfire.''
Legislative History.--On March 3, 2005, the Subcommittee
met in open session and ordered favorably reported H. Con. Res.
53, without amendment, by voice vote. On March 9, 2005, the
Committee ordered favorably reported H. Con. Res. 53, without
amendment, by voice vote. On March 17, 2005, the Committee
reported the bill (H. Rept. 109-22). On April 19, 2005, the
House passed H. Con. Res., without amendment, by voice vote.
The following day the bill was received in the Senate and
referred to the Senate Committee on the Judiciary.
H. Con. Res. 319, Expressing the sense of the Congress regarding the
successful and substantial contributions of the amendments to
the patent and trademark laws that were enacted in 1980 (Public
Law 96-517; commonly known as the ``Bayh-Dole Act''), on the
occasion of the 25th anniversary of its enactment
Summary.--Introduced by Representative F. James
Sensenbrenner, Jr., H. Con. Res. 319 reaffirms Congress'
commitment to the policies and objectives of the Bayh-Dole Act
on the 25th anniversary of its enactment.
Legislative History.--On March 10, 2006, the Subcommittee
discharged H. Con. Res. 319. On March 15, 2006, the Committee
met in open session and ordered favorably reported H. Con. Res.
319, without amendment, by voice vote. The Committee reported
the bill on April 5, 2006 (H. Rept. 109-409). The text of H.
Con. Res. 319 was included as Sec. 201 of S. 1785, which the
House passed by voice vote on December 6, 2006.
Oversight Activities
Summary of the Committee's oversight plan and the Subcommittee's
responses thereto
Pursuant to its obligations under Rule X of the House
Rules, the Committee submitted the following subject matter as
part of its oversight plan for the 109th Congress.
The Federal Judicial system
The Subcommittee has oversight responsibility for four
entities located within the Federal Judicial Branch: (1) the
Judicial Conference of the United States; (2) the
Administrative Office of the U.S. Courts; (3) the Federal
Judicial Center; and (4) the State Justice Institute. The
Subcommittee also has jurisdiction over the Federal Rules
Enabling Act and the Advisory Committees on Civil Rules,
Appellate Rules and Rules of Evidence.
During Chairman Sensenbrenner's tenure, the Subcommittee
has devoted much time and resources to enhancing judicial
ethics and investigating instances of judicial misconduct.
Pursuant to discussions with Chairman Sensenbrenner and former
Chief Justice Rehnquist during the 108th Congress, Justice
Breyer was appointed to head an ad hoc judicial commission to
review the judicial misconduct and recusal statutes to
determine whether they are serving the public interest. This
commission developed its findings and reported them on
September 19, 2006, which should lay the groundwork for further
amendments to the Judicial Councils Reform and Judicial Conduct
and Disability Act of 1980 (the ``1980 Act'') in the 110th
Congress.
The Subcommittee also conducted an impeachment
investigation of U.S. District Judge Manuel L. Real of the
Central District of California in the fall of 2006. The Ninth
Circuit twice dismissed complaints filed against Judge Real
under the 1980 Act for his conduct in a case he oversaw from
2000-03.
In addition, the Subcommittee's oversight plan noted an
ongoing problem regarding the referral of patent appeals to
State courts and the regional Federal circuits. Congress
created the Federal Circuit in 1982 to unify patent law. This
means that the Federal Circuit was always intended to hear
patent appeals--not the individual circuit courts of appeals or
the State courts. A 2002 Supreme Court decision (Holmes Group)
has cast the role of the Federal Circuit in doubt. More
specifically, the Court ruled that appeals from cases in which
the patent claim appears in a pleading other than the complaint
must go to the regional circuits. This has led to both the
regional circuits accepting patent cases and some State courts
hearing patent and copyright cases. The Subcommittee conducted
hearings on March 17, 2005, in regards to the Holmes Group
problem and reported legislation to fix it.
The U.S. copyright system
The Subcommittee continued to devote considerable time to
oversee the operation of the copyright system in a world of
ever-changing technology. It is vital to the protection of our
copyright industry that the Subcommittee be vigilant in its
exercise of its jurisdiction to carry out its constitutional
mandate to ``promote the progress of science and useful arts,
by securing for limited times to authors and inventors the
exclusive right to their respective writings and
discoveries[.]'' (U.S. Const. art. I Sec. 8. cl. 8).
The Subcommittee has oversight responsibilities over the
operation of the U.S. Copyright Office, which is part of the
Library of Congress. The Copyright Office has a number of
responsibilities, from collecting and distributing copyright
royalties to registering and granting certificates of
copyrights to thousands of people each year. The Subcommittee
conducted an oversight hearing on April 5, 2006, to address the
changing needs and efficient operation of that office.
Many of the Office's employees have been physically
displaced due to renovations and re-engineering within the
Madison Building. The Office also required additional
appropriations to discharge its obligations under the new
``CARP'' statute. Both issues were explored more fully during
an oversight hearing in 2005.
Much of the Subcommittee's copyright agenda pertains to the
operations of the entertainment industries, including the music
business. Performance rights organizations, or ``PROs,'' ensure
that songwriters are paid when their works are publicly
performed. The Society of European Stage Authors and Composers
(SESAC) is the only performing rights organization that does
not operate under a consent decree. Smaller than its
competitors, Broadcast Music, Inc (BMI) and the American
Society of Composers, Authors and Publishers (ASCAP), it is
nonetheless growing. The Subcommittee followed-up on its
oversight plan by reviewing operations of the PROs, with an
emphasis on how SESAC treats its artists.
Two themes that have dominated the Subcommittee's copyright
oversight and legislative agenda are those efforts to (1)
inhibit piracy of copyrighted works and (2) modernize the
Copyright Act to facilitate greater digital reproduction and
distribution of copyrighted works.
Concerning piracy, defenders of peer-to-peer (P2P) systems
and hardware/electronic companies argue that copyright holders
are inhibiting a more robust roll-out of music/movie
technologies that the public wants. While the Subcommittee has
encouraged the development of such technologies, the great
majority of its members believe it must be done in a manner
that respects the property rights of affected content holders.
During the 109th Congress, this point was explored more fully
in oversight hearings that touched upon IP piracy in the
People's Republic of China and Russia; P2P piracy on university
campuses; and implementation of the ``broadcast flag.''
Concerning the ``modernization'' of the Copyright Act, the
Subcommittee devoted considerable resources to reviewing
Section 115 of the Act. This is a torturously drafted and
antiquated statute that allows, under prescribed conditions,
the use of ``phonorecords'' that have already been distributed.
It is in need of an update and the affected industry players
are trying to develop consensus views on how to reform the law.
In addition to its oversight hearings and staff-industry
negotiation on a Section 115 reform bill, the Subcommittee took
similar initiative to modernize the treatment of ``orphan
works.'' These are copyrighted works whose authors/owners
cannot be identified, thereby limiting public access to them.
It is hoped that a bipartisan bill can be developed that will
strike an appropriate balance between the rights of the
affected property owners and the public interest in accessing
these works.
The U.S. patent and trademark systems
The U.S. Patent and Trademark Office (PTO) is part of the
Department of Commerce and the Subcommittee has oversight
responsibilities for its authorization and its operation. The
PTO is responsible for the examination and issuance of U.S.
Patents and Trademarks. It is also responsible for the
international negotiations with other intellectual property
authorities, such as the European Patent Office and the
Japanese Patent Office.
The Subcommittee held oversight hearings on the PTO during
the 109th Congress, including review of a Government
Accountability Office report on the agency's operations
(special emphasis was placed on its progress in implementing a
workable electronic communications system). Improving PTO
efficiency is critical in terms of securing more revenue for
the agency through the appropriators.
The PTO became a completely fee-funded agency pursuant to
the budget reconciliation act passed in 1990. Since 1992,
however, more than $800 million in fee revenue has been
diverted by congressional appropriators (with the support of
both Republican and Democratic administrations) to other
programs.
In June 2002, former PTO Director Jim Rogan released a
``Stategic Business Plan'' outlining his vision for
transforming agency operations, with the intent of improving
patent and trademark quality while reducing work backlogs.
Representatives of the affected user groups subsequently worked
with the agency to refine the plan further.
A major component of the Plan included the enactment of a
new fee schedule that would raise fees, on average, by more
than 15%. As a follow-up to oversight review of diversion, the
Subcommittee reported legislation, H.R. 2791, to implement the
new fee schedule in tandem with language to eliminate the
incentive to divert excess revenue to non-PTO programs.
Finally, and commensurate with its review of copyright
piracy, the Subcommittee also explored patent piracy during its
oversight hearings on trade relations with the People's
Republic of China and Russia.
List of oversight hearings
Digital Music Licensing and Section 115 of the Copyright
Act, March 8, 2005 (Serial No. 109-6).
Holmes Group, the Federal Circuit, and the State of Patent
Appeals, March 17, 2005 (Serial No. 109-7).
Digital Music Inoperability and Availability, April 6, 2005
(Serial No. 109-9).
Committee Print Regarding Patent Quality Improvement (Part
1), April 20, 2005 (Serial No. 109-11).
Committee Print Regarding Patent Quality Improvement (Part
2), April 28, 2005 (Serial No. 109-11).
Public Performance Rights Organizations, May 11, 2005
(Serial No. 109-25).
Intellectual Property Theft in China, May 17, 2005 (Serial
No. 109-34).
Intellectual Property Theft in Russia, May 17, 2005 (Serial
No. 109-34).
Copyright Office Views on Music Licensing Reform, June 21,
2005 (Serial No. 109-28).
Review of U.S. Patent and Trademark Office Operations,
Including Analysis of General Accounting Office, Inspector
General, and National Academy of Public Administration Reports,
September 8, 2005 (Serial No. 109-48).
Reducing Peer-to-Peer (P2P) Piracy on University Campuses:
A Progress Update, September 22, 2005 (Serial No. 109-56).
Improving Federal Court Adjudication of Patent Cases,
October 6, 2005 (Serial No. 109-59). Content Protection in the
Digital Age: The Broadcast Flag, High-Definition Radio, and the
Analog Hole, November 3, 2005 (Serial No. 109-80).
Federal Courts Jurisdiction Clarification Act, November 15,
2005 (Serial No. 109-67).
International IPR Report Card- Assessing U.S. Government
and Industry Efforts to Enhance Chinese and Russian Enforcement
of Intellectual Property Rights, December 7, 2005 (Serial No.
109-88).
Report on Orphan Works by the Copyright Office, March 8,
2006 (Serial No. 109-94).
Remedies for Small Copyright Claims, March 29, 2006 (Serial
No. 109-92).
Patent Quality Enhancement in the Information-Based
Economy, April 5, 2006 (Serial No. 109-99).
Patent Harmonization, April 27, 2006 (Serial No. 109-100).
Discussion Draft of the Section 115 Reform Act (SIRA) of
2006, May 16, 2006 (Serial No. 109-108).
Patent Trolls: Fact or Fiction?, June 15, 2006 (Serial No.
109-104).
Digital Music Licensing and Section 115 of the Copyright Act (Serial
No. 109-6)
The hearing was held to update the Subcommittee on private
sector negotiations that have been ongoing since a March 2004
Subcommittee hearing on Section 115 of the Copyright Act. The
hearing also reviewed related music licensing issues. This
hearing was the first of a series of music licensing hearings
during the 109th Congress and explored the possibility of
introducing legislation on this topic for later in the term.
The following witnesses appeared and submitted a written
statement for the record: Wood Newton, Nashville Songwriters
Association, International; David Israelite, President and
Chief Executive Officer, National Music Publishers'
Association; Larry Kenswil, President, e-Labs, Universal Music
Group; and Jonathan Potter, Executive Director, Digital Media
Association (DiMA).
``Holmes Group,'' the Federal Circuit, and the State of Patent Appeals
(Serial No. 109-7)
The hearing reviewed the Supreme Court decision of Holmes
Group, Inc., v. Vornado Air Circulation Systems, Inc., to
determine whether the U.S. Court of Appeals for the Federal
Circuit should have plenary authority to hear all patent
appeals from lower courts. In addition, the Subcommittee
explored the extent to which the Federal Circuit is
accomplishing its main intended purpose of unifying patent law.
The following witnesses appeared and submitted a written
statement for the record: Edward R. Reines, Esq., Weil,
Gotshal, & Manges, LLP; Arthur D. Hellman, Professor of Law,
University of Pittsburgh School of Law; Sanjay Prasad, Chief
Patent Counsel, Oracle Corporation; and Meredith Martin Addy,
Esq., Brinks, Hofer, Gilson & Lione.
Digital Music Inoperability and Availability (Serial No. 109-9)
The purpose of the hearing was to explore one of the issues
concerning digital music services and digital music licensing.
Consumer adoption of digital music services appears to be high,
indicating consumer acceptance of such services. However, some
have suggested that consumer adoption of the services would be
even higher if consumers better understood the various
restrictions and interoperability issues that accompany digital
music. Others have suggested that consumers do understand these
restrictions and interoperability issues and have accepted them
with little or no complaint. The issue has an impact upon
artist's royalties if consumers cannot pay for legal copies of
their music. This hearing did not focus on government
technology mandates or the Digital Millennium Copyright Act
(DMCA), although both are part of the digital interoperability
discussion.
The following witnesses appeared and submitted a written
statement for the record: Dr. Mark Cooper, Director of
Research, Consumer Federation of America; Raymond Gifford,
President, The Progress & Freedom Foundation; Dr. William
Pence, Chief Technology Officer, Napster; and Michael Bracy,
Policy Director, Future of Music Coalition.
Committee Print Regarding Patent Quality Improvement (Part 1) (Serial
No. 109-11)
The purpose of the hearing was to explore the merits of a
Committee Print that incorporates a number of changes geared
toward improving the quality of patents issued by the U.S.
Patent and Trademark Office (PTO). The Print also speaks to
certain patent practices that disrupt the operations of
manufacturers and other businesses. While the Subcommittee has
documented a steady increase in application pendency and
backlogs at the PTO in recent years, the consensus view among
agency officials and the inventor community is that efforts to
address these problems should not take precedent over improving
patent quality. Patents of questionable scope or validity waste
valuable resources by inviting third-party challenges and
ultimately discourage private-sector investment.
The following witnesses appeared and submitted a written
statement for the record: J. Jeffrey Hawley, Legal Division
Vice President and Director, Patent Legal Staff, Eastman Kodak
Company, on behalf of the Intellectual Property Owners
Association (IPO); Richard J. Lutton, Jr., Chief Patent
Counsel, Apple, on behalf of the Business Software Alliance
(BSA); Jeffrey P. Kushan, Esq., Sidley, Austin, Brown and Wood,
LLP, on behalf of Genetech; and William L. LaFuze, Partner,
Vinson & Elkins, LLP, and Chair, Section on Intellectual
Property Law, the American Bar Association, on behalf of the
ABA and the Section of Intellectual Property Law.
Committee Print Regarding Patent Quality Improvement (Part 2) (Serial
No. 109-11)
See the background description of the oversight hearing of
the same name, Part 1, above.
The following witnesses appeared and submitted a written
statement for the record: The Honorable Jon W. Dudas, Under
Secretary of Commerce for Intellectual Property & Director of
the U.S. Patent and Trademark Office; Richard C. Levin,
President, Yale University, on behalf of the National Research
Council; Nathan P. Myhrvold, Chief Executive Officer,
Intellectual Ventures; and Darin E. Bartholomew, Senior
Attorney, Patent Department, John Deere and Company, on behalf
of the Financial Services Roundtable.
Public Performance Rights Organizations (Serial No. 109-25)
The purpose of the hearing was to explore the operations of
the three public performing rights organizations (PROs) in the
United States--ASCAP (American Society of Composers, Authors,
and Publishers); BMI (Broadcast Music Incorporated); and SESAC
(Society of European Songwriters and Composers). ASCAP and BMI
operate under Department of Justice consent decrees, while
SESAC does not. ASCAP and BMI combined represent in excess of
90% of the works available through the three PROs. The
differences in size and existence of consent decrees for two of
the three PROs result in varied licensing practices that impact
those who seek to obtain public performance licenses. These
same differences have also generated a competition dispute
between ASCAP/BMI and SESAC.
The following witnesses appeared and submitted a written
statement for the record: Del R. Bryant, President and Chief
Executive Officer, Broadcast Music Inc. (BMI); Stephen Swid,
Chairman and Chief Executive Officer, SESAC Inc.; Jonathan M.
Rich, Partner, Morgan Lewis & Bockius, on behalf of ASCAP; and
Will Hoyt, Executive Director, Television Music License
Committee (TMLC).
Intellectual Property Theft in China (Serial No. 109-34)
The purpose of this hearing was to receive testimony and to
assess the current state of legal and enforcement policies that
relate to the protection of Intellectual Property Rights (IPR)
within China. The hearing focused specifically on continuing
enforcement issues in China as well as the recent decision by
the U.S. Trade Representative not to invoke WTO trade dispute
mechanisms against the Chinese.
The following witnesses appeared and submitted a written
statement for the record: Victoria Espinel, Acting Assistant
U.S. Trade Representative for Intellectual Property, Office of
U.S. Trade Representative; Ted C. Fishman, Author & Journalist,
China, Inc.; Myron Brilliant, Vice President, East Asia, U.S.
Chamber of Commerce; and Eric H. Smith, President,
International Intellectual Property Alliance (IIPA).
Intellectual Property Theft in Russia (Serial No. 109-34)
The hearing addressed specific IP enforcement problems
within the Russian Federation, including evidence that a
substantial number of illicit optical disk plants are being
operated on land owned and controlled by the government. This
hearing assessed whether there are ``lessons learned'' from
Chinese accession to the WTO that ought to be applied in
advance of US support for Russian accession.
The following witnesses appeared and submitted a written
statement for the record: the Honorable Victoria Espinel,
Acting Assistant U.S. Trade Representative for Intellectual
Property, Office of U.S. Trade Representative; Eric Schwartz,
Vice President & Special Counsel, International Intellectual
property Alliance (IIPA); Bonnie J.K. Richardson, Senior Vice
President, International Policy, Motion Picture Association of
America; and Matthew T. Gerson, Senior Vice President, Public
Policy and Government Relations, Universal Music Group.
Copyright Office Views on Music Licensing Reform (Serial No. 109-28)
The purpose of this hearing was to review a Copyright
Office print on music licensing reform that would merge the
administration of mechanical and performing rights of
copyrighted musical works to eliminate many of the licensing
issues that have been identified as slowing the roll-out of new
digital music services.
The following witness appeared and submitted a written
statement for the record: the Honorable Marybeth Peters,
Register of Copyrights, Copyright Office of the united States,
the Library of Congress..
Review of U.S. Patent and Trademark Office Operations, Including
Analysis of General Accounting Office, Inspector General, and
National Academy of Public Administration Reports (Serial No.
109-48)
The purpose of the hearing was to review the operations of
the U.S. Patent and Trademark Office (PTO) and to identify
problems that hinder its effectiveness. Recent reports from the
Inspector General's office and the General Accountability
Office (GAO) have focused on such issues as the hiring and
retention of patent examiners, the PTO's application backlog,
the current steps to achieve a paperless (electronic) patent
process, and time required to process patents.
The following witness appeared and submitted a written
statement for the record: the Honorable Jon Dudas, Under
Secretary of Commerce for Intellectual Property & Director,
U.S. Patent and Trademark Office (PTO); Anu K. Mittal,
Director, Science and Technology Issues, U.S. General
Accountability Office (GAO); Ronald J. Stern, President, Patent
Office Professional Association (POPA); and Charles Van Horn,
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP.
Reducing Peer-to-Peer (P2P) Piracy on University Campuses: A Progress
Update (Serial No. 109-56)
The hearing focused on the extent to which university-based
piracy contributes to digital copyright infringement generally.
The Subcommittee also explored whether the affected schools
have implemented policies to educate students about online
piracy of digital works and developed programs to thwart the
practice. This hearing followed up on hearings of the same
topic held in February 2003 and September 2004.
The following witness appeared and submitted a written
statement for the record: Daniel A. Updegrove, Vice President
for Information Technology, University of Texas at Austin;
Norbert W. Dunkel, Director of Housing and Residence and
Education, University of Florida; William J. Raduchel, Chairman
and Chief Executive Officer, Ruckus Network; and Richard
Taylor, Senior Vice President, External Affairs & Education,
Motion Picture Association of America (MPAA).
Improving Federal Court Adjudication of Patent Cases (Serial No. 109-
59)
The purpose of the hearing was to examine the state of
patent case adjudication by the Federal judiciary and to
consider the merits of several structural and litigation
reforms that have been proposed to improve the adjudication of
patent disputes. This hearing examined several proposals (1) to
improve the accuracy of patent claims construction and trial
adjudication and (2) to increase judicial expertise and
efficiency in the disposition of patent cases.
The following witness appeared and submitted a written
statement for the record: Kimberly A. Moore, Professor of Law,
George Mason University School of Law; John B. Pegram, Senior
Counsel, New York Office, Fish & Richardson, P.C.; Chris J.
Katopis, Drinker Biddle & Reath LLP; the Honorable T. S. Ellis,
III, United States District Judge, Eastern District of
Virginia.
Content Protection in the Digital Age: The Broadcast Flag, High-
Definition Radio, and the Analog Hole (Serial No. 109-80)
The purpose of the hearing was to explore content
protection in the digital age in three different settings--the
broadcast flag, HD radio, and the analog hole. Consumer
adoption of digital sources of movies (DVDs) and music (iTunes,
Napster, XM, Sirius) continues to grow sharply. However,
copyright owners have argued that transmitting unprotected
digital content to consumers will enable mass piracy of high
quality copies of the works. Several methods are currently
being used to encrypt or otherwise restrict access to and
redistribution of digital content. DVDs are encrypted with the
Content Scrambling System (CSS). Music downloads from iTunes
are wrapped in a digital rights management technology called
FairPlay that permits a limited number of copies to be made of
a work protected by the method. XM and Sirius satellite radio
receivers do not include a digital ``signal-out'' jack to
enable digital copies.
The following witness appeared and submitted a written
statement for the record: the Honorable Dan Glickman, Chairman
and Chief Executive Officer, Motion Picture Association of
America (MPAA); Mitch Bainwol, Chairman and Chief Executive
Officer, Recording Industry Association of America (RIAA); Gigi
B. Sohn, President, Public Knowledge; and Michael Petricone,
Vice President, Government Affairs, Consumer Electronics
Association (CEA).
Federal Courts Jurisdiction Clarification Act (Serial No. 109-67)
The purpose of this hearing was to explore the merits of a
Committee Print that incorporates changes to title 28, United
States Code, governing Federal district court jurisdiction.
These changes have been submitted by the Judicial Conference of
the United States. The changes to title 28 are intended to
resolve particular problems that have arisen in the application
of Federal jurisdictional statutes. The Committee on Federal-
State Jurisdiction for the Judicial Conference developed the
findings for the Committee Print, which was later approved by
the Judicial Conference.
The following witness appeared and submitted a written
statement for the record: the Honorable Janet C. Hall, Judge,
United States District Court for the District of Connecticut,
on behalf of the Judicial Conference Committee on Federal-State
Jurisdiction; Arthur Hellman, Professor, University of
Pittsburgh School of Law; and Richard A. Samp, Chief Counsel,
Washington Legal Foundation.
International IPR Report Card--Assessing U.S. Government and Industry
Efforts to Enhance Chinese and Russian Enforcement of
Intellectual Property Rights (Serial No. 109-88)
The purpose of the oversight hearing was to receive
testimony and to assess the current state of legal and
enforcement policies that relate to the protection of
Intellectual Property Rights (IPR) within China and the Russian
Federation. A principal focus of this hearing was an assessment
of the effectiveness of U.S. Government and industry efforts to
jointly develop a comprehensive strategy for enhancing respect
for intellectual property rights by the governments of China
and the Russian Federation.
The following witness appeared and submitted a written
statement for the record: the Honorable Chris Israel,
Coordinator for International Intellectual Property
Enforcement, U.S. Department of Commerce; the Honorable
Victoria Espinel, [Acting] Assistant U.S. Trade Representative
for Intellectual Property, Office of U.S. Trade Representative;
Eric H. Smith, President, International Intellectual Property
Alliance (IIPA); and Joan Borsten, President, Films by Jove,
Inc.
Report on Orphan Works by the Copyright Office (Serial No. 109-94)
The purpose of the hearing was to review the Copyright
Office ``Report on Orphan Works.'' It has been released after
one year of work in which more than 800 public comments were
received and two rounds of public hearings were held. The
report is of keen interest to both the copyright owner and
copyright user community that are both impacted by orphan works
issues. The term ``orphan works'' refers to copyrighted works
whose owners cannot be located. The term does not apply to
works in the public domain or to copyrighted works whose owners
are asking for royalties or licensing terms that a potential
user does not wish to accept. Efforts to access an orphan works
is typically stymied because the owner cannot be found to
authorize its use by a third party, possibly in exchange for a
royalty fee. Although other provisions of existing copyright
law may apply to potential orphan-works situations and allow
their use, such as fair use and reproductions by libraries and
archives, these provisions cover only a limited number of
orphan-works situations.
The following witness appeared and submitted a written
statement for the record: Jule L. Sigall, Associate Register
for Policy and International Affairs, Copyright Office of the
United States, The Library of Congress; Allan Adler, Vice
President for Legal and Government Affairs, Association of
American Publishers, Inc. (AAP); David P. Trust, Chief
Executive Officer, Professional Photographers of America, Inc.;
and Maria A. Pallante, Associate General Counsel and Director
of Licensing, The Solomon R. Guggenheim Foundation (Guggenheim
Museum).
Remedies for Small Copyright Claims (Serial No. 109-92)
The purpose of the oversight hearing was to investigate the
issues faced by copyright owners when their works are infringed
and the damages caused by the infringement use would be small,
perhaps only a few hundred or thousand dollars. This issue
affects all copyright owners, but is particularly acute for
owners of certain categories of works, including photographers,
illustrators, graphic artists, and needlepoint designers.
Software, music, and movie companies have the financial
resources to pursue such claims, but often have much bigger
cases to pursue.
The following witness appeared and submitted a written
statement for the record: Paul Aiken, Executive Director,
Authors Guild; Jenny Toomey, Executive Director, Future of
Music Coalition; Brad Holland, founding Board Member,
Illustrators' Partnership of America; and Victor S. Perlman,
General Counsel and Managing Director, American Society of
Media Photographers, Inc.
Patent Quality Enhancement in the Information-Based Economy (Serial No.
109-99)
The purpose of the hearing was to explore the extent to
which the quality of U.S.-issued patents have deteriorated in
recent years and the resulting effect on the American economy.
Quality enhancement is one of the driving themes of patent
reform in the 109th Congress.
The following witness appeared and submitted a written
statement for the record: the Honorable Jon W. Dudas, Under
Secretary of Commerce for Intellectual Property & Director of
the U.S. Patent and Trademark Office; James Balsillie, Chairman
and Co-Chief Executive Officer, Research In Motion (RIM);
Robert A. Stewart, Director and Chief Patent Counsel of
Americas, UBS AG; and Mark A. Lemley, William H. Neukom
Professor of Law, Stanford Law School.
Patent Harmonization (Serial No. 109-100)
The purpose of the hearing was to explore the merits of
promoting global harmonization within the U.S. patent system.
Proponents of harmonization argued that inventors and the
public are better served when patent systems worldwide share
the same basic components or framework. This makes it easier
and cheaper to obtain international patent protection.
The following witness appeared and submitted a written
statement for the record: Q. Todd Dickinson, Vice President and
Chief Intellectual Property Counsel, General Electric Company;
Robert A. Armitage, Senior Vice President and General Counsel,
Eli Lilly and Company; Gary Mueller, President and Chief
Executive Officer, Digital Now, Inc.; and Pat Choate, Political
Economist and author of Hot Property: The Stealing of Ideas in
an Age of Globalization.
Discussion Draft of the Section 115 Reform Act (SIRA) of 2006 (Serial
No. 109-108)
The purpose of the hearing was to hear testimony on H.R.
___, a discussion draft to reform Section 115 of Title 17, the
U.S. Copyright Act for digital music services. Over the past
two years, the Committee has held a number of hearings on music
licensing reform, focusing on Section 115 of the Copyright Act.
Although digital music services continue to grow in popularity,
there are a number of obstacles to the success of the
transition to digital music. Some of the largest obstacles are
the current inefficiencies in the licensing system for
mechanical rights, often referred as the ``download'' right.
The following witnesses appeared and submitted a written
statement for the record: David Israelite, President and Chief
Executive Officer, National Music Publishers' Association
(NMPA); Jonathan Potter, Executive Director, Digital Media
Association (DiMA); Rick Carnes, President, Songwriters Guild
of America (SGA); and Cary Sherman, President, Recording
Industry Association of America, Inc. (RIAA).
Patent Trolls: Fact or Fiction? (Serial No. 109-104)
The purpose of the hearing was to define ``trolling''
behavior, determine its degree of prevalence in the patent
system, and explore legislative reforms to combat it. Critics
of the patent system, including certain high-tech and software
companies, believe that trolls contribute to the proliferation
of poor quality patents. Ultimately, these critics assert,
trolls force manufacturers to divert their resources from
productive endeavors to combating bogus infringement suits. The
contents of the bill, the substitute, and the redline are based
on submissions proffered by the PTO, other government entities,
and industry, which were reviewed by Subcommittee Chairman
Lamar Smith and staff. Much of its text was culled from a
Committee Print that was the subject of two prior Subcommittee
hearings during the 109th Congress.
The following witnesses appeared and submitted a written
statement for the record: Edward R. Reines, Esq., Weil, Gotshal
& Manges, LLP; Dean Kamen, President, DEKA Research &
Development Corporation; Paul Misener, Vice President for
Global Public Policy, Amazon.com; and Chuck Fish, Vice
President & Chief Patent Counsel, Time Warner, Inc.
SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS
JOHN N. HOSTETTLER, Indiana,
Chairman
SHEILA JACKSON LEE, Texas STEVE KING, Iowa
HOWARD L. BERMAN, California LOUIE GOHMERT, Texas
ZOE LOFGREN, California LAMAR SMITH, Texas
LINDA T. SANCHEZ, California ELTON GALLEGLY, California
MAXINE WATERS, California BOB GOODLATTE, Virginia
MARTIN T. MEEHAN, Massachusetts DANIEL E. LUNGREN, California
JEFF FLAKE, Arizona
ROBERT D. INGLIS, South Carolina
DARRELL E. ISSA, California
Tabulation of subcommittee legislation and activity
Public:
Legislation referred to Subcommittee......................... 178
Legislation on which hearings were held...................... 3
Legislation reported favorably to the full Committee......... 0
Legislation reported adversely to the full Committee......... 0
Legislation reported without recommendation to the full
Committee.................................................. 0
Legislation reported as original measure to the full
Committee.................................................. 0
Legislation discharged from the Subcommittee................. 5
Legislation pending before the full Committee................ 0
Legislation reported to the House............................ 4
Legislation discharged from the Committee.................... 0
Legislation pending in the House............................. 2
Legislation passed by the House.............................. 2
Legislation pending in the Senate............................ 1
Legislation vetoed by the President (not overridden)......... 0
Legislation enacted into Public Law.......................... 1
Days of Legislative Hearings................................. 3
Days of Oversight Hearings................................... 25
Private:
Claims:
Legislation referred to the Subcommittee..................... 4
Legislation on which hearings were held...................... 0
Legislation reported favorably to the full Committee......... 1
Legislation pending before the full Committee................ 1
Legislation discharged from the full Committee............... 0
Legislation pending in the House............................. 0
Legislation passed by the House.............................. 0
Legislation pending in the Senate............................ 0
Legislation enacted into Private Law......................... 0
Immigration:
Legislation referred to the Subcommittee..................... 77
Legislation on which hearings were held...................... 0
Legislation reported favorably to the full Committee......... 2
Legislation pending before the full Committee................ 0
Legislation discharged from the full Committee............... 0
Legislation pending in the House............................. 0
Legislation passed by the House.............................. 0
Legislation pending in the Senate............................ 0
Legislation enacted into Private Law......................... 0
Jurisdiction of the Subcommittee
The Subcommittee on Immigration, Border Security, and
Claims has jurisdiction over immigration and naturalization,
border security, admission of refugees, treaties, conventions
and international agreements, claims against the United States,
federal charters of incorporation, private immigration and
claims bills, non-border enforcement, other appropriate matters
as referred by the Chairman, and relevant oversight.
Legislation Enacted Into Law
H.R. 2293, To Provide Special Immigrant Status for Persons Serving as
Translators with the United States Armed Forces
Summary.--A number of alien translators are currently
working in Iraq and Afghanistan embedded with units of the U.S.
Armed Forces and providing extremely valuable services. Their
cooperation and close identification with the U.S. military
have put their and their families' lives in danger. This danger
will only escalate after U.S. forces leave or reduce their
strength in Iraq and Afghanistan. The U.S. Marine Corps has
therefore requested immigration relief for this small group of
brave individuals.
Under the legislation, permanent resident visas are
available to nationals of Iraq or Afghanistan (and their
spouses and minor children) who have worked directly with the
U.S. Armed Forces as translators for at least 12 months, who
have obtained favorable written recommendations from the
officer in charge of the unit they worked with, and who have
cleared a background check. No more than 50 principals may
receive permanent resident status in any fiscal year, and the
recipients will count towards the 10,000 per year quota of
special immigrant visas.
Legislative History.--On May 11, 2005, Subcommittee on
Immigration, Border Security and Claims Chairman John
Hostettler introduced H.R. 2293, to provide special immigrant
status for aliens serving as translators with the United States
Armed Forces. On May 18, 2005, the Judiciary Committee ordered
H.R. 2293 reported as amended by a voice vote. On May 26, 2005,
the Judiciary Committee reported H.R. 2293 (H. Rept. 109-99).
On January 1, 2006, the President signed into law H.R. 1815,
the National Defense Authorization Act for Fiscal Year 2006
(Pub. L. No.109-163), sec. 1059 of subtitle F of title X of
which contained the language of H.R. 2293.
H.R. 4830, the Border Tunnel Prevention Act
Summary.--H.R. 4830 amends the federal criminal code to
prohibit the construction or financing of an unauthorized
tunnel or subterranean passage that crosses the international
border between the United States and another country. It
imposes a 20-year prison term for such offense.
H.R. 4830 imposes a 10-year prison term on any person who
recklessly permits the construction or use of such a tunnel or
passage on land that such person owns or controls, and doubles
penalties for persons who use such a tunnel or passage to
unlawfully smuggle an alien, illegal goods, controlled
substances, weapons of mass destruction, or members of a
terrorist organization.
H.R. 4830 directs the U.S. Sentencing Commission to
promulgate or amend sentencing guidelines to provide for
increased penalties for persons convicted of criminal offenses
related to the construction or financing of such a tunnel or
passage.
Legislative History.--On March 1, 2006, Representative
David Dreier introduced H.R. 4830, the Border Tunnel Prevention
Act of 2006. On April 26, 2006, Senator Dianne Feinstein
introduced S. 2652, the Border Tunnel Prevention Act. On May
22, 2006, Representative Harold Rogers introduced H.R 5441, the
Department of Homeland Security Appropriations Act, 2007. On
July 13, 2006, the Senate passed H.R. 5441, sec. 556 of title V
of which contained the language of the Border Tunnel Prevention
Act. On September 21, 2006, the House passed H.R. 4830 by a
vote of 422-0. On September 28, 2006, the conference report to
H.R. 5441 was filed (H. Rept. 109-699), sec. 551 of title V of
which contained the language of the Border Tunnel Prevention
Act. The House passed the conference report on September 29 by
a vote of 412-6, and the Senate passed the conference report on
the same day by voice vote. On October 4, 2006, the President
signed into law the conference report to H.R. 5441 (Pub. L. No.
109-295), conference report 109-699.
Extension of the ``Mikulski'' H-2B Visa Program Amendment
Summary.--The Mikulski amendment to the REAL ID Act
provided that aliens who had received H-2B visas in any of the
last three years would not be counted toward the 2005 or 2006
quotas of 66,000 visas when receiving H-2B visas in those
years. This provision extended the life of the Mikulski
amendment by providing that aliens who had received H-2B visas
in 2004, 2005, or 2006 shall not be counted toward the 2007
quota when receiving H-2B visas in 2007.
Legislative History.--On April 6, 2006, Representative
Duncan Hunter introduced H.R. 5122, the National Defense
Authorization Act for Fiscal Year 2007. On June 22, 2006, the
Senate passed H.R. 5122 by unanimous consent, sec. 1091 of
subtitle I of title X of which provided for a two year
extension of the Mikulski amendment. On September 29, 2006, the
conference report to H.R. 5122 was filed (H. Rept. 109-702). On
that date, the House passed the conference report by a vote of
398-23, and on the next day the Senate passed the conference
report by unanimous consent. Section 1074 of title X of the
conference report contained a modified one year extension of
the Mikulski amendment. On October 17, 2006, the President
signed into law H.R. 5122, the John Warner National Defense
Authorization Act for Fiscal Year 2007 (Public Law No. 109-
364).
S. 3821, the COMPETE Act of 2006
Summary.--S. 3821 allows minor league professional athletes
and certain performers (including ice skaters performing in
theatrical ice productions) to utilize the P-1 nonimmigrant
visa category. The P-1 visa category allows athletes at an
``internationally recognized level of performance'' and
professional entertainers and artists to temporarily enter the
U.S. To date, U.S. Citizenship and Immigration Services has
interpreted the Immigration and Nationality Act in such a way
as to only allow major league professional athletes to utilize
the P-1 visa category. As a consequence, minor league baseball
and hockey players have been forced to utilize the H-2B visa
category, which is capped at 66,000 visas annually and has been
oversubscribed in recent years. Ice-skaters who perform in
special events in the U.S. find themselves in the same
situation.
Legislative History.--On August 3, 2006, Senator Susan
Collins introduced S. 3821. On December 6, 2006, the Senate
passed S. 3821 with an amendment by unanimous consent. On
December 9, 2006, the House passed S. 3821 under suspension of
the rules by a voice vote.
H.R. 4997, the Physicians for Underserved Areas Act
Summary.--Aliens who participate in medical residencies in
the United States on ``J'' exchange program visas must
generally leave the U.S. at the conclusion of their residencies
to reside abroad for two years before they can be eligible for
permanent residence or status as ``H-1B'' or ``L'' visa
nonimmigrants. The intent behind this policy is to encourage
American-trained foreign doctors to return home to improve
health conditions and advance the medical profession in their
native countries. In 1994, Congress created a waiver (until
June 1, 1996) of the two-year foreign residence requirement
when requested by state departments of public health for
foreign doctors who commit to practicing medicine for no less
than three years in a geographic area or areas designated by
the Secretary of Health and Human Services as having a shortage
of health care professionals. The number of foreign doctors who
could receive the waiver was limited to 20 per state. In 1996,
Congress extended the waiver to June 1, 2002. In 2002, Congress
extended the waiver until June 1, 2004. At the same time, the
numerical limitation on waivers was increased to 30 per state.
In 2004, Congress extended the waiver until June 1, 2006. H.R.
4997 extends the waiver until June 1, 2008.
Legislative History.--On March 16, 2006, Representative
Jerry Moran introduced H.R. 4997. On May 18, 2006, the
Subcommittee on Immigration, Border Security and Claims held a
hearing on H.R 4997. On September 27, 2006, the Judiciary
Committee ordered H.R. 4997 reported, as amended by a voice
vote. On December 6, 2006, the House of Representatives passed
H.R. 4997 under suspension of the rules by a voice vote. On
December 9, 2006, the Senate passed H.R. 4997 by unanimous
consent.
Legislation Passed by the House of Representatives
H.R. 1817, the Department of Homeland Security Authorization Act for
Fiscal Year 2006
Summary of Major Provisions within the Jurisdiction of the
Judiciary Committee.--Section 102 of H.R. 1817 would have
authorized the hiring of 2,000 full-time Border Patrol agents
above the number of such positions for which funds were
allotted for fiscal year 2005 (excluding any supplemental
appropriations). Section 108 would have authorized the hiring
of 300 U.S. Immigration and Customs Enforcement attorneys and
300 U.S. Citizenship and Immigration Services adjudicators
above the number of such positions for which funds were
allotted for fiscal year 2005. Section 109 would have
authorized the appropriation of $40,000,000 to reimburse states
and localities for training costs they incur pursuant to
entering into agreements with DHS under section 287(g) of the
INA to assist in the enforcement of immigration laws. Section
402 would have required the Commissioner of U.S. Customs and
Border Protection to prepare a report on the effectiveness of
the One Face at the Border Initiative (in which each inspector
at a port of entry can oversee the enforcement of immigration,
customs, and agriculture laws in regard to persons seeking
admission). Section 501 would have required the Secretary of
DHS to report on the current organizational structure of DHS,
including a description of the rationale for, and any benefits
and costs of, the division of immigration and customs
enforcement into an interior agency (ICE) and a border agency
(CBP) and the combination within both agencies of immigration
and customs enforcement functions. Section 514 would have
required the Government Accountability Office to conduct a
study on the consequences of increasing the fees for
applications for Temporary Protected Status. Section 515 would
have required GAO to conduct a study on expanding the use of
premium processing fees to family-based immigration petitions
and applications. Section 520 would have reaffirmed the
inherent authority of state and local law enforcement to assist
in the enforcement of immigration laws. Section 521 would have
required DHS to establish a training manual for state and local
law enforcement interested in assisting in the enforcement of
immigration laws.
Legislative History.--On April 26, 2005, Representative
Chris Cox introduced H.R. 1817. On April 27, 2005, the Homeland
Security Committee ordered the bill reported as amended by a
voice vote. On May 3, 2005, the Homeland Security Committee
reported the bill (H. Rept. 109-71, Part I). On May 12, 2005,
the Judiciary Committee ordered the bill reported as amended by
a voice vote. On May 13, 2005, the Judiciary Committee reported
the bill (H. Rept. 109-71, Part III). On May 18, 2005, the
House passed H.R. 1817 by a recorded vote of 424-4. No further
action was taken on H.R. 1817.
H.R. 3827, the Immigration Relief for Hurricane Katrina Victims Act of
2005
Summary.--H.R. 3827 would have provided special immigrant
status for aliens who were the beneficiaries of immigrant
petitions or labor condition applications pending on the date
of Hurricane Katrina's arrival that were nullified as a direct
result of the hurricane, and their spouses and children. This
would have included, for example, individuals whose employment-
based visas were nullified because the businesses where they
intended to work were destroyed by the hurricane.
The bill would have extended nonimmigrant status for aliens
disabled, or whose spouse or parent died, as a result of
Hurricane Katrina. It also would have provided extensions of
status for aliens unable to timely apply as a direct result of
the hurricane. The bill would have provided relief to those
aliens who won an immigrant visa through the diversity visa
lottery program but were unable to use the visa as a direct
result of the hurricane during the fiscal year for which it was
allotted. It also would have allowed foreign students who were
adversely affected by the hurricane to remain in status while
re-enrolling in an education program.
H.R. 3827 would have provided immigration relief for
surviving spouses and children of citizens who died as a result
of the hurricane. It would have allowed them to retain their
status as relatives of hurricane victims while they petitioned
for immigration benefits. It would have provided relief to
family members of legal permanent residents by allowing
petitions to remain valid even after the death of the legal
permanent resident. And it would have provided similar relief
to family members of asylees and refugees.
Legislative History.--On September 20, 2005, Chairman F.
James Sensenbrenner, Jr., introduced H.R. 3827. On September
21, 2005, the House passed H.R. 3827 under suspension of the
rules by a voice vote. No further action was taken on H.R.
3827.
H.R. 3647, to Render Nationals of Denmark Eligible to Enter the United
States as Nonimmigrant Traders and Investors
Summary.--``E-2'' visas are nonimmigrant visas available
for treaty investors. Under the Immigration and Nationality
Act, a visa is available to an alien who is:
entitled to enter the United States under and in
pursuance of the provisions of a treaty of commerce and
navigation between the United States and the foreign
state of which he is a national, and the spouse and
children of any such alien if accompanying or following
to join him . . . solely to develop and direct the
operations of an enterprise in which he has invested .
. . a substantial amount of capital . . . .
The U.S. has entered into treaties of commerce containing
language similar to the E-2 visas since at least 1815, when we
entered into a Convention to Regulate Commerce with the United
Kingdom. Currently, the nationals of 74 countries are eligible
for E-2 status. Nationals of Denmark are already eligible for
``E-1'' (treaty trader) visas pursuant to the Treaty of
Friendship, Commerce, and Navigation Between the United States
and Denmark of October 1, 1951. The U.S. and Denmark signed a
protocol to that treaty on May 2, 2001, that would grant Danes
eligibility for E-2 visas. However, the Judiciary Committee has
since made clear that all immigration provisions should go
through the normal legislative process and not be contained in
trade agreements or treaties. This bill therefore would grant
access to E-2 nonimmigrant visa status to nationals of Denmark.
Legislative History.--On September 6, 2005, Chairman F.
James Sensenbrenner, Jr., introduced H.R. 3647. On September
29, 2005, the Judiciary Committee ordered H.R. 3647 reported as
amended by a voice vote. On October 18, 2005, the Judiciary
Committee reported H.R. 3647 (H. Rept. 109-251). On November
16, 2005, the House passed H.R. 3647 under suspension of the
rules by a voice vote. No further action was taken on H.R.
3647.
H.R. 4437, The Border Protection, Antiterrorism, and Illegal
Immigration Control Act of 2005
Summary of major provisions of the House-passed bill within
the jurisdiction of the Judiciary Committee. --
1. Section 3. Sense of Congress on setting a manageable
level of immigration. This section would have provided that it
was the sense of Congress that the nation's immigration policy
should be designed to enhance the economic, social and cultural
well-being of the United States.
2. Section 104. Biometric data enhancements. This section
would have required that by October 1, 2006, the Secretary of
Homeland Security have enhanced the connectivity between the
Automated Biometric Identification System and Integrated
Automated Fingerprint Identification System biometric databases
and have collected 10-fingerprints from individuals through the
United States Visitor and Immigrant Status Indicator Technology
program during their initial enrollment.
3. Section 118. Sense of Congress regarding enforcement of
immigration laws. This section would have provided that it was
the sense of Congress that the Administration should
immediately use every tool available to enforce the immigration
laws.
4. Section 122. Completion of background and security
checks. The Department of Homeland Security Inspector General
recently released a report revealing that not all applications
for immigration benefits underwent an Interagency Border
Inspection System background check of the applicants before
they were granted. This section would have required that no
immigration benefit could be granted by a court of law or by
DHS or the Executive Office for Immigration Review unless and
until an IBIS check had been conducted, and until all
derogatory information had been assessed and completed and
until any suspected or alleged benefit fraud had been
investigated and found to be unsubstantiated.
5. Section 201. Definition of aggravated felony. This
section would have amended the definition of aggravated felony
in the INA to include all smuggling offenses and illegal entry
and reentry crimes with a sentence of a year or more. It would
also have brought the aggravated felony definition in line with
federal criminal law by expanding it to include solicitation
and assistance in specified offenses. The INA broadly defines
the term ``aggravated felony''. If an alien has been convicted
of such an offense, the alien will be ineligible for most forms
of relief and for release from detention. Illegal reentry after
such an offense will also subject the alien to serious criminal
penalties. The aggravated felony definition does not
effectively deter, however, many dangerous aliens from
repeatedly reentering the United States illegally.
Specifically, the definition only includes illegal entry and
illegal reentry violations of the INA where the alien was
previously deported for having committed another aggravated
felony. The current definition is unduly restrictive in several
respects. First, this definition does not reach aliens who
previously committed various other felonies, even though those
felonies may have been serious crimes. Second, it does not
reach aggravated felon aliens who were previously deported, but
who were not deported on the basis of their aggravated felony
convictions. Section 201 would have solved this problem by
including within the definition of aggravated felony a felony
illegal entry or reentry offense under section 275(a) or
section 276 of the INA, without regard to whether the alien had
been previously deported subsequent to conviction of an
aggravated felony. In addition to these changes, section 201
would also have made all smuggling convictions aggravated
felonies with the exception of smuggling related to an alien's
immediate family.
Finally, the section would have made clear that the
definition of aggravated felony includes ``soliciting, aiding,
abetting, counseling, commanding, inducing, procuring'' or a
conspiracy to commit any of the offenses listed in section
101(a)(43) of the INA, by incorporating the aiding and abetting
language from federal law. This change is needed to reverse
contrary Ninth Circuit precedent in criminal cases that has
required federal prosecutors in seeking sentencing enhancements
to prove that prior convictions were not based on aiding and
abetting. This is often impossible to prove, because in federal
court, and in almost every state jurisdiction, a defendant can
be convicted of aiding and abetting a substantive offense, even
if aiding and abetting is not specifically charged in the
indictment.
6. Section 202. Alien smuggling and related offenses. This
section would have amended the alien smuggling provisions of
the INA to include offenses where the offender acted in
reckless disregard of the fact that the smuggled person was an
alien not allowed to enter, placed mandatory minimum sentences
on smuggling convictions, and facilitated DHS's efforts to
seize smugglers' property.
As the southwest border has become increasingly secure,
more and more illegal aliens are utilizing the services of
alien smugglers and the cost of their services has increased
dramatically. Alien smuggling not only facilitates illegal
immigration, but subjects smuggled aliens to inhumane
treatment. Migrants are frequently abused or exploited, both
during their journey and upon reaching the United States. There
are many recent examples--aliens abandoned by their smugglers
in the desert, without food or water, to avoid apprehension,
and aliens who have died or suffered serious injuries when
locked by smugglers into trucks and cargo containers.
Consequently, aliens smuggled into the United States are at
significant risk of physical injury, abuse, and death. In
addition, smuggled aliens must often pay back their debts
through long periods of indentured servitude in sweatshop
conditions, and smugglers often coerce indebted aliens into
drug trafficking, prostitution, and other illegal activities.
Aliens who fail to cooperate with smugglers suffer severe
penalties. Smuggling also poses a national security risk, as
terrorists and criminals can utilize the same smugglers that
economic migrants use.
However, under current law, individuals convicted of alien
smuggling crimes often receive lenient sentences, which have
contributed to the upsurge in alien smuggling. Organized crime
syndicates realize that the risk of punishment for smuggling
aliens is far less than the risk for smuggling drugs or
committing other serious crimes. And lenient sentences act to
dissuade U.S. Attorneys from bringing cases.
Under existing law, the offenses and penalties for
unlawfully bringing aliens into the United States are set forth
in two separate provisions, sections 274(a)(1) and 274(a)(2) of
the INA. For historical reasons, those provisions were
implemented and developed separately. As a result, the two
provisions contain inconsistent mens rea elements, and provide
disparate sentences for identical or substantially similar
conduct. Accordingly, the successful prosecution of virtually
identical conduct can lead to different results under current
law, depending upon whether a violation of section
274(a)(1)(A)(i) or (a)(2) is charged. Section 202 would have
created a uniform mens rea standard for alien smuggling and
related offenses, and set uniform sentences for violations of
those offenses. Unlike current law, the penalties for those
would have been based on the factual circumstances of the
offense and the danger that the smuggling posed to the alien
and to the community rather than on the code section charged.
Thus, offenses that were committed for commercial profit would
have been punished more severely than offenses that were not.
Offenses that were committed to further other criminal acts
would have been subject to even more serious mandatory
sentences, as would have been offenses that result in injury or
death. Consistent with existing law, offenses in which death
results would have been be eligible for the death penalty.
The section would also have increased the criminal
penalties for certain alien smuggling offenses and established
mandatory minimum sentences for serious and repeat offenders,
and where the smuggling posed a risk to individuals or the
nation.
The section would have expanded the scope of the alien
smuggling statute to reach conduct that is not covered by
existing law. It would have reached conduct relating to
facilitating the smuggling of aliens to the United States by
persons who willfully participated in alien smuggling ventures,
but where the government cannot demonstrate beyond a reasonable
doubt that the smugglers knew the aliens were en route to the
United States. Rather than forming centralized, tightly
controlled hierarchies, alien smugglers often favor loose,
short- or long-term associations. These global networks often
match smugglers who specialize in particular nationalities or
portions of routes. Under existing law, however, smugglers who
play an integral role in facilitating the illegal movement of
aliens to the United States cannot be prosecuted unless the
government can prove that the smuggler knew or recklessly
disregarded the fact that the aliens intended to travel to the
United States. The section would have plugged this loophole.
The section would also have helped to take the profit out
of smuggling. Under existing law, civil forfeiture is limited
to any conveyance used in smuggling. Section 202 would have
permitted civil forfeiture of any property, real or personal,
used to commit or facilitate the commission of a violation of
amended subsection (a)(1), the gross proceeds of such
violation, and property traceable to such property or proceeds.
7. Section 203. Improper entry by, or presence of, aliens.
This section would have made illegal presence in the United
States a federal crime, and would have expanded the penalties
for aliens who illegally entered the U.S. or who entered or
were present illegally following convictions of certain crimes.
It also would have expanded the penalties for marriage and
immigration-related entrepreneurship fraud.
Section 275 of the INA currently criminalizes illegal entry
into the United States. Section 203 of the bill would have
amended section 275 to state that it was a crime for an alien
to be ``present in the United States in violation of the
immigration laws or regulations prescribed thereunder.'' It
thus would have removed incentives for aliens, having entered
legally, to remain in the United States in violation of the
terms of their visa or entry. Currently, ``visa overstay'' is
not a criminal offense, and, as a practical matter, there are
often no negative consequences to it. The Immigration and
Naturalization service believed that about 41 percent of the
total illegal immigrant population (as of 1996) consisted of
alien who had overstayed temporary visas. Because overstaying a
visa is not currently a criminal offense, in many cases an
alien is no worse off for having remained in the United States
past the expiration of an authorized stay than he would have
been had he departed on time. On the contrary, in some cases
aliens have sought relief based on factors that develop during
the time they were out of status. In making overstaying a visa
a federal crime, section 203 would have encouraged aliens to
depart at the end of their authorized stay. It would have
increased respect for the immigration system by deterring
aliens who remain in the United States out of status in the
mistaken belief that their visa overstay is merely a technical
violation, or that if they elude authorities for long enough
they will be granted relief from deportation based on acquired
equities.
Section 203 also would have contained sentence enhancements
for illegal alien criminal offenders who remain in the United
States after conviction. Finally, the section would have
increased the penalties for marriage and immigration-related
entrepreneurship fraud. Enhanced penalties are necessary to
deter an increasing level of immigration fraud, particularly by
criminal organizations that utilize, promote, or derive
financial benefit from immigration fraud.
8. Section 204. Reentry of removed aliens. This section
would have set mandatory minimum sentences for aliens convicted
of reentry after removal. Section 276 of the INA criminalizes
attempted or successful entry into the United States by illegal
aliens who have been previously excluded, deported, removed, or
denied admission. Unfortunately, this provision has proven
ineffective at deterring the reentry of aliens after removal
into the United States. The problem is so out of control that
United States Attorneys Offices have set threshholds for the
number of reentries aliens must commit before they will be
prosecuted. This problem is especially serious when it comes to
criminal aliens. For example, Rafael Resendez-Ramirez, the so-
called ``Railway Killer'' who killed at least eight people over
a three-year period in the late 1990s, had an extensive
criminal record in the United States beginning in 1976,
including provisions for burglary and aggravated assault. He
also had an extensive immigration record, having been arrested
for illegal entry on seven occasions in 1998 alone. As the
Department of Justice's Inspector General found, however:
``Because Resendez had not reached the threshold number of
prior apprehensions for prosecution established in each of the
stations where he was apprehended, he was not detained for
prosecution,'' but instead was returned to Mexico. The IG found
that ``after each return to Mexico, he re-entered the United
States illegally and continued his criminal activities,''
including the December 1998 murder of Dr. Claudia Benton in
Houston. Section 204 would have both deterred alien criminals
from reentering illegally and encouraged prosecutors to take
their cases when they do.
The section would have also resolved an issue that has
arisen in numerous prosecutions under section 276. At present,
to prove a violation of section 276, the Government is required
to show that the Secretary of Homeland Security did not consent
to the alien applying for readmission to the United States or
that the alien is not required to obtain such consent. Thus, in
order to convict an alien of re-entering the United States
after removal, the government must prove a negative, i.e., that
the Attorney has not ``expressly consented to such alien's
reapplying for admission.'' Each case therefore requires the
government to perform an intensive search of its records, and
then issue a certificate of nonexistence to certify that they
search was done and no application from the specific alien-
defendant was found. Although almost no aliens ever apply for
the Secretary's consent, DHS must nevertheless make an
exhaustive search in each case. Section 204 would have
converted permission to reenter into an affirmative defense to
an illegal reentry charge. Because few aliens apply for the
Secretary of Homeland Security's consent, and the defendant-
alien is in the best position to know whether he applied for
such permission, this change would have properly apportioned
the burden with respect to consent to reenter and eliminated
the need for the Government to prove that the Secretary did not
consent in its case-in-chief.
9. Section 205. Mandatory sentencing ranges for persons
aiding or assisting certain reentering aliens. This section
would have deterred the smuggling of removed aliens by imposing
on smugglers the same sentences that the aliens they had
smuggled would have received.
10. Section 206. Prohibiting carrying or using a firearm
during and in relation to an alien smuggling crime. Section
924(c) of Title 18 criminalizes the carrying or using of
firearms in the commission of violent crimes or drug
trafficking crimes. Presently, however, this provision does not
cover alien smugglers who use firearms to further their
criminal schemes. An increasing number of alien smugglers are
utilizing firearms to facilitate their smuggling, and a greater
number are expected to arm themselves as their livelihood is
disrupted by U.S. agents patrolling America's borders. The
willingness of smugglers to use and carry firearms endangers
the lives of Border Patrol agents and the aliens who are being
smuggled, not to mention innocent bystanders. The use of
weapons also makes it more likely that smugglers and aliens
will escape apprehension, as it allows them to forcibly resist
border patrol officers. Section 206 would have subjected alien
smugglers to the same penalties faced by criminals who carried
firearms when they trafficked in narcotics and committed
federal crimes of violence.
11. Section 207. Clarifying changes. This section would
have clarified that the provision barring entry to aliens who
had made false claims to U.S. citizenship also applied to
aliens who had made false claims to U.S. nationality. It also
would have provided that DHS shall have access to any
information kept by any federal agency as to any person who was
seeking a benefit or privilege under the immigration law.
12. Section 208. Voluntary departure reform. ``Voluntary
departure'' is a benefit in removal proceedings that allows
deportable aliens to agree to leave the United States within a
specified time period on their own volition rather than
formally being ordered removed. By departing voluntarily,
aliens can avoid the adverse legal consequences of a final
order of removal. Ideally, the government should also benefit
from this practice, because it is spared the expenses of
initiating removal proceedings, extensively litigating the
aliens' cases, and, in the end, removing the aliens. The
government may not realize such benefits in practice, however,
because few aliens granted voluntary departure actually depart
from the country expeditiously. In all too many cases, a grant
of voluntary departure is often merely a prelude to years of
further litigation in which the alien continues to benefit from
delay in removal. Under current law, an alien who receives
voluntary departure can appeal his immigration case to the
Board of Immigration Appeals, and then to the Court of Appeals.
Many circuit courts will toll the voluntary departure period
pending review. At the end of this process, possibly years
after the original voluntary departure grant, and after having
every appeal denied, the alien can then leave the United States
in accordance with the original voluntary departure grant.
Section 208 would have changed this process to encourage
aliens to depart under the terms of the voluntary departure
order. The section would have amended the INA to offer clear
advantages for aliens who agreed to voluntary departure and
then actually departed, and to foreclose future litigation in
the alien's case. Under the section, an alien would only have
been granted voluntary departure pursuant to an agreement in
which the alien agreed to waive appeal. This would not have
precluded the alien from taking an appeal, however. If the
alien opted to take an appeal in lieu of voluntary departure,
the alien may have done so. The voluntary departure agreement
would have been void, however. Section 208 also contained
penalties in the even that the alien failed to depart in
accordance with the voluntary departure agreement. Failure to
depart would have subjected the alien to a $3000 fine, and the
alien would have been barred from certain forms of relief for
as long as the alien remained in the country and for 10 years
thereafter. An alien who violated a voluntary departure
agreement by failing to depart would not have been able to
reopen his removal proceedings, except to apply for withholding
of removal or protection under the Convention Against Torture.
Taken together, these provisions would have freed up the
government's limited judicial, litigation, and removal
resources. They also would have provided the alien with
incentives to depart the United States as the alien agreed. In
addition, the section would have reduced the maximum period of
voluntary departure before the end of proceedings from 120 to
60 days, and aliens receiving such benefit would have had to
post a bond or show that a bond would create a hardship or was
unnecessary.
13. Section 209. Deterring aliens ordered removed from
remaining in the United States unlawfully and from unlawfully
returning to the United States after departing voluntarily. The
Department of Homeland Security estimates that some 480,000
absconders--aliens who are under final orders of removal but
have evaded apprehension and removal by DHS--are currently in
the United States, and approximately 40,000 new absconders are
added each year. In 2003, the Department of Justice Inspector
General issued a report that found the former INS had
successfully carried out removal orders with respect to only
13% of non-detained aliens who were subject to final removal
orders--and was able to remove only 3% of non-detained aliens
who had unsuccessfully sought asylum. Much of the problem with
removing alien absconders is the fact that there are currently
few effective administrative sanctions available under the law
for absconders after they are apprehended--other than merely
executing the same removal order that they had successfully
flouted for months or years. Even if such aliens are
unsuccessful in obtaining the reopening of their previous final
order, they may simply launch a new round of litigation before
the Board and the courts.
Section 209 would have provided more effective
administrative tools to deter absconders from remaining in this
country illegally and to prevent them from obtaining any
further advantages after flouting their removal orders. It
would have improved the bars on reentry by aliens ordered
removed by closing a loophole allowing aliens to avoid these
penalties by remaining unlawfully in the United States. Under
section 209, the bars on admissibility would have applied once
the alien is ordered removed--even if that alien had not yet
departed. Similarly, the section would have barred aliens from
future discretionary relief if they have absconded after
receiving a final order of removal until they have left the
United States and for 10 years thereafter. It also would have
barred the granting of motions to reopen to aliens who had
flouted their legal duty to depart from the United States under
the final order of removal. By foreclosing future relief for
aliens who fail to depart, the changes in section 209 would
have increased the incentive for aliens to seek and to comply
with removal orders.
14. Section 210. Establishment of the Forensic Documents
Laboratory. This section would have required the Secretary of
Homeland Security to establish a Forensic Documents Laboratory
to collect information on the production, sale, and
distribution of fraudulent documents to be used to enter or
remain in the U.S. unlawfully, to maintain that information in
a database, to convert the information into reports to provide
guidance to government officials, and to develop a system for
distributing these reports to appropriate law enforcement
agencies.
15. Section 211. Section 1546 amendments. This section
would have provided that a person who distributes forged or
counterfeited visas or other entry documents or documents
evidencing authorized stay or employment authorization was
subject to the same criminal penalties as are those who forged
or counterfeited the documents.
16. Section 212. Motions to reopen or reconsider. This
section would have clarified that the Board of Immigration
Appeals' decisions on motions to reopen are discretionary
decisions that are not subject to judicial review. The granting
of motions to reopen and motions to reconsider are
discretionary decisions under current DOJ regulations and have
long been recognized as discretionary by the courts. When
Congress enacted the current statutory provisions governing
motions to reopen and to reconsider, however, Congress did not
specifically provide that the grant or denial of such a motion
is within the discretion of the Attorney General. The courts,
therefore, have concluded that these discretionary decisions by
the Attorney General and his delegates (the immigration judges
and the Board of Immigration Appeals) are subject to judicial
review. Judicial review of denials of such motions has
contributed to the explosion in immigration litigation in the
federal courts. This section would have corrected this problem.
It also would have provided that an alien could file an
additional motion to reopen a removal proceeding if DHS sought
to remove the alien to an alternative or additional country and
the alien made a prima facie case that the alien was entitled
to withholding of removal or protection under the Convention
Against Torture with respect to that country.
17. Section 213. Reform of passport, visa, and immigration
fraud offenses. This section would have updated the criminal
code provisions criminalizing passport and immigration fraud in
order to increase penalties and to facilitate effective
enforcement. Provisions in this section would also have
penalized fraud against aliens applying for immigration
benefits. Immigration and passport fraud is widespread,
increasingly organized, and highly profitable. Current
provisions are insufficient to deal with these crimes:
sentences are too light, the elements of the offenses are
poorly worded, and no special penalties are provided for those
who traffic in passports or immigration documents. This
revision would have addressed these problems. The revision
would also have created a new crime of defrauding aliens--a
major hole in existing law.
18. Section 214. Criminal detention of aliens. This section
would have provided that criminal defendants' immigration
status would be an express consideration in determining whether
the defendants should be released on bond. Federal law
currently makes no mention of immigration status as a
consideration in pretrial detention determinations. As a
result, the detention of aliens charged with crimes is uneven,
and some courts release aliens who lack lawful status and face
certain removal even if they are acquitted. The section would
have created a rebuttable presumption of detention for alien
defendants who (1) had no status, (2) had an outstanding order
of removal, or (3) were charged with a serious immigration
offense.
19. Section 215. Uniform statute of limitations for certain
immigration, naturalization, and peonage offenses. This section
would have extended the statute of limitations for all
immigration-related fraud to 10 years. Currently, the
limitations period is five years for some immigration crimes
(such as immigration and visa fraud) but 10 years for others
(including passport and naturalization fraud). This disparity,
which restricts the government's ability to prosecute numerous
immigration frauds and alien smuggling cases, is of particular
concern in the national security arena, where the authorities
often uncover serious fraud committed outside the currently
applicable limitations period.
20. Section 217. Inadmissibility for passport and
immigration fraud. Currently, convictions for all passport
offenses do not make an alien automatically subject to
exclusion, and a conviction for immigration fraud makes an
alien automatically removable but not necessarily excludable.
This section would have made any conviction for passport fraud,
visa fraud, or immigration fraud a ground of exclusion
regardless of when the offense was committed.
21. Section 218. Removal for passport and immigration
fraud. This section would have made changes similar to those in
section 217--all passport, immigration, and visa fraud
violations under chapter 75 of Title 18 grounds would have been
made grounds of removability.
22. Section 219. Reduction in immigration backlog. This
section would have required that within six months of
enactment, USCIS undertake maximum efforts to reduce to the
greatest extent practicable the backlog in its processing and
adjudicative functions. The agency may have implemented a pilot
program to reduce the backlog of unadjudicated applications for
immigration benefits.
23. Section 220. Federal affirmation of assistance in the
immigration law enforcement by states and political
subdivisions of states. This section would have reaffirmed the
inherent authority of states and local law enforcement to
investigate, identify, apprehend, arrest, detain, and transfer
to federal custody aliens in the U.S. in order to assist in the
enforcement of the immigration laws. At the present time, there
are only about 2,000 Special Agents to locate and arrest the
entire illegal alien population. This provision would have made
crystal clear that local and state officers who were willing to
do so could act as a force multiplier for those 2,000 agents.
24. Section 221. Training of State and local law
enforcement personnel relating to the enforcement of
immigration laws. This section would have required DHS to
establish a training manual for state and local law enforcement
personnel wishing to assist in the enforcement of the
immigration laws. DHS would have had to make training available
to state and local law enforcement personnel through multiple
means, including by e-learning.
25. Section 222. Financial assistance to state and local
police agencies that assist in the enforcement of immigration
laws. This section would have authorized $250 million annually
in grants to states and localities for procurement of necessary
items to facilitate their assistance in enforcing the
immigration laws.
26. Section 223. Institutional Removal Program (IRP). This
section would have expanded to all states the Institutional
Removal Program, under which removable aliens are identified
while serving their prison sentences so that their removal
proceedings can take place during their incarceration and they
can be deported expeditiously once they have finished serving
their sentences. The section would have required that states
receiving federal funds in compensation for the cost of
incarcerating illegal aliens had to cooperate with the IRP
program. The section also would have authorized states to
detain aliens who had served their sentences until they could
be taken into custody by ICE. Finally, the section would have
authorized funds to carry out the IRP.
27. Section 224. State Criminal Alien Assistance Program
(SCAAP). This section would have provided an indefinite
authorization for the State Criminal Alien Assistance Program
(which reimburses states for the cost of incarcerating illegal
aliens) of $1 billion per year.
28. Section 225. State authorization for assistance in the
enforcement of immigration laws encouraged. This section would
have provided that states and localities that prohibited their
law enforcement officers from assisting and cooperating with
federal immigration law enforcement were ineligible for funds
under the SCAAP program.
29. Section 308. Communication Between government agencies
and the Department of Homeland Security. Section 642 of the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996 provided that no state or local governmental entity or
official could prohibit or restrict their employees from
communicating with the INS regarding the immigration status of
any individual. Many localities have been openly violating this
law, and thus inhibiting the ability of the federal government
to gain control over illegal immigration and deal effectively
with criminal aliens. This section would have provided an
enforcement mechanism for section 642 by stipulating that any
state or local government entity in violation of section 642
would be ineligible for law enforcement grant programs carried
out by the Department of Justice.
30. Section 401. Mandatory detention for aliens apprehended
at or between ports of entry. This section would have required
the Department of Homeland Security by October 1, 2006, to
detain all aliens apprehended at ports of entry or along the
international land and maritime borders of the United States
until they were removed from the United States or a final
decision granting their admission had been determined. The only
exceptions to mandatory detention would have been if the alien
had departed immediately, such as Mexican nationals who were
voluntarily returned across the border, and those paroled due
to urgent humanitarian reasons or significant public benefit.
This would have ended the long-time''revolving door'' whereby
illegal aliens from countries other than Mexico were caught
trying to illegally enter the U.S. and promptly released with
the hope that they would appear for their immigration court
hearing months hence. As noted earlier, the Department of
Justice's Office of the Inspector General found that the INS
was only able to remove 13% of nondetained aliens with final
orders of removal. In 2005, 120,000 of the 160,000 ``other-
than-Mexicans'' apprehended along the border were released. The
Department of Homeland Security is currently trying to end the
revolving door policy through expedited removal and increased
use of detention for non-Mexicans caught along the border.
31. Section 402. Expansion and effective management of
detention facilities. This section would have required the
Secretary of Homeland Security to fully utilize all bed space
owned and operated by the Department to full capacity and to
utilize all other possible options to cost effectively increase
detention capacity including temporary facilities, contracting
with state and local jails, and secure alternatives to
detention.
32. Section 403. Enhancing transportation capacity for
unlawful aliens. This section would have authorized the
Secretary to enter into contracts with private entities to
provide secure domestic transportation of aliens apprehended at
or between ports of entry from the custody of the Border Patrol
to a detention facility.
33. Section 404. Denial of admission to nationals of
country denying or delaying accepting alien. Current law
requires the Secretary of State to discontinue granting visas
to nationals of countries that deny or unreasonably delay
accepting the return of their nationals subject to deportation
by the U.S. Because this punishment is so draconian--barring
all nationals of a country from receiving visas--it is almost
never used, despite the fact that a number of countries
continue to refuse to accept the return of their nationals.
This section would have added a more measured punishment that
was more likely to be used--authorizing the Secretary of
Homeland Security to deny admission to any national of a
country that declined to accept the prompt repatriation of its
nationals.
34. Section 405. Report on financial burden of
repatriation. This section would have required the Secretary to
submit an annual report to the Secretary of State and the
Committee on Homeland Security that detailed the costs to the
Department of Homeland Security for repatriating aliens and
provide recommendations to more cost effectively repatriate
such aliens.
35. Section 407. Expedited removal. By the mid-1990s, tens
of thousands of aliens were arriving at U.S. airports each year
without valid documents and making meritless asylum claims,
knowing that they would be released into the community pending
asylum hearings because of a lack of detention space. Few were
ever heard from again. In response, the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 created the
mechanism of ``expedited removal''. Under expedited removal, a
DHS officer at a port-of-entry can immediately return an alien
lacking proper documents to his or her country of origin unless
the alien asks for asylum and can establish a ``credible fear''
of persecution. By fiscal year 2003, the INS was making over
43,000 expedited removals per year and our airports were no
longer being deluged. IIRIRA provided the Administration with
the authority to utilize expedited removal in the case of any
alien who had entered the U.S. illegally and had not been
present here for two years. Until recently, the INS and DHS
never made use of this power. Recently, the Administration has
taken a tentative step towards using expedited removal along
the southern border because of the large numbers of non-Mexican
aliens who have been caught by the Border Patrol and then
released into the United States because of a lack of detention
space. Under the discretionary authority provided by IIRIRA,
the Administration has been utilizing expedited removal against
aliens who are apprehended within 100 miles of the border and
14 days of unauthorized entry. Section 407 would have mandated
the use of expedited removal in these instances.
36. Section 408. GAO Study on deaths in custody. This
section would have required the Government Accountability
Office to submit within six months of enactment a report to
Congress on the deaths in custody of detainees held on
immigration violation by the Department of Homeland Security.
37. Section 410. Listing of immigration violators in the
National Crime Information Center Database. This section would
have required that information regarding aliens subject to
final removal orders, aliens who were unlawfully present
because they had overstayed their period of authorized
presence, and certain other aliens had been contained in the
National Crime Information Center database.
38. Section 601. Removal of terrorist aliens. Withholding
of removal is a form of protection that, while similar to
asylum, differs in two important respects: (1) it is
nondiscretionary and (2) to receive this benefit, the alien
must meet a higher standard of proof than asylum. Although
aliens who pose a danger to the national security generally are
barred from withholding of removal, aliens deportable on
terrorist grounds are not expressly barred from such relief. As
is apparent from the 9/11 Commission's staff report on
terrorist travel, terrorist aliens have abused our humanitarian
benefits to remain in the United States. First World Trade
Center bomber Ramzi Yousef, the Blind Sheikh, and Mir Kansi,
who killed two in front of the CIA, all made claims to asylum
to remain in the United States. Congress has barred terrorist
aliens from receiving asylum, but the bars to terrorist aliens
receiving withholding of removal are less clear. Under the INA,
aliens are currently only barred from withholding if there are
reasonable grounds to believe that they are a danger to the
security of the United States. While the INA makes clear that
aliens described in a provision of the INA that renders
deportable aliens who have engaged in any terrorist activity
``shall be considered to be . . . alien[s] with respect to whom
there are reasonable grounds for regarding as a danger to the
Security of the United States'', this has led to claims by
aliens with terrorist ties that they are not a danger to the
security of the U.S., and thus still eligible for withholding.
Section 601 would have barred all aliens described in the
terrorist grounds of inadmissibility from eligibility for
withholding of removal, with two exceptions. Under the
exceptions, DHS would have had the sole discretion to determine
that representatives of terrorist groups, and the spouses and
children of aliens who would themselves have been barred on
terrorist grounds, were not a danger to the national security
and were not barred from such relief.
39. Section 602. Detention of dangerous aliens. In the 2001
decision of Zadvydas v. Davis, the Supreme Court ruled that
under current law, aliens who had been admitted to the U.S. and
then ordered removed could not be detained for more than six
months if for some reason they could not be removed. Then, in
Clark v. Martinez, the Court dealt with two Cubans who came to
the U.S. during the Mariel boatlift and later committed crimes
including assault with a deadly weapon, attempted sexual
assault, and armed robbery. The Court expanded its decision in
Zadvydas to apply to such nonadmitted aliens. Based on the two
decisons, the Justice Department and the Department of Homeland
Security have had no choice but to release back onto the
streets many hundreds of criminal aliens. Jonathan Cohn, Deputy
Assistant Attorney General, has testified that ``the government
is [now] required to release numerous rapists, child molesters,
murderers, and other dangerous illegal aliens into our streets.
. . . [V]icious criminal aliens are now being set free within
the U.S.'' Cohn referenced the release of aliens including
murderers, a schizophrenic sex offender and pedophiles. Many of
these aliens were Mariel Cubans released from Cuban jails or
aliens who have received relief from removal pursuant to the
Convention Against Torture, which prohibits the return of an
alien to a country where there are substantial grounds for
believing that he or she would be in danger of being tortured.
Almost 900 criminal aliens ordered removed have received CAT
relief and have subsequently been released into our communities
pursuant to the decisions. This includes at least one alien who
was implicated in a mob-related quintuple homicide in
Uzbekistan. Also, one alien removable on terrorism grounds has
been released after receiving CAT protection. One of the aliens
released has subsequently been arrested for shooting a New York
State trooper in the head.
Section 602 would have allowed DHS to detain specified
dangerous aliens under orders of removal who could not be
removed. The section would have authorized DHS to detain aliens
who were stopped at the border beyond six months. The section
would also have authorized DHS to detain aliens who effected an
entry beyond six months, but only if (1) the alien would have
been removed in the reasonably foreseeable future, (2) the
alien would have been removed but for the alien's refusal to
make all reasonable efforts to comply and cooperate with the
Secretary's efforts to remove him, (3) the alien had a highly
contagious disease, (4) release would have had serious adverse
foreign policy consequences, (5) release would have threatened
national security, or (6) release would have threatened the
safety of the community and the alien either was an aggravated
felon or was mentally ill and had committed a crime of
violence. Such aliens could have been detained for periods of
six months at a time, and the period of detention could have
been renewed. The section also would have provided for judicial
review of detention decisions in the United States District
Court for the District of Columbia.
40. Section 603. Increase in criminal penalties. This
section would have increased penalties and set mandatory
minimum sentences for aliens who failed to depart when ordered
removed or obstructed their removal, or who failed to comply
with the terms of release pending removal.
41. Section 604. Precluding admissibility of aggravated
felons and other criminals. In the INA, the most serious
criminal offenses are deemed aggravated felonies. A conviction
for an aggravated felony can have significant consequences for
an alien. Such an offense requires the removal of an admitted
alien and bars him from most forms of relief, and also subject
an alien to an increased sentence for certain crimes. However,
under current law a conviction for an aggravated felony is not,
per se, a ground of inadmissibility. For this reason, an
aggravated felony conviction will not render an alien
inadmissible under section 212(a)(2) of the INA unless the
conviction also falls within one of the existing criminal
grounds of inadmissibility, such as a crime involving moral
turpitude, or a controlled substance or money laundering
offense. Section 604 would have barred aggravated felons from
admission and from receiving discretionary waivers of
inadmissibility under section 212(h) of the INA. This would
have corrected an anomaly under current law by which aliens
with aggravated felony convictions who were present illegally
could receive waivers under that provision, while lawful
permanent resident aliens could not.
Section 604 also would have applied the domestic violence
ground of deportability to inadmissibility. This would have
prevented aliens who had been convicted of crimes of domestic
violence, stalking, child abuse and child neglect from entering
and remaining in the United States. Finally, section 604 would
have amended the inadmissibility grounds to bar the admission
of aliens who had committed or been convicted of crimes
relating to social security fraud or the unlawful procurement
of citizenship.
42. Section 605. Precluding refugee or asylee adjustment of
status for aggravated felons. In various statutory enactments
since 1988, Congress has attached a series of stringent
restrictions on the eligibility of aliens to obtain almost all
forms of discretionary immigration relief after they have been
convicted of an aggravated felony. In particular, under the
asylum provisions, an alien convicted of an aggravated felony
is conclusively barred from being granted asylum, and a grant
of asylum may be terminated if it is determined that the alien
has become subject to one of the mandatory bars to asylum,
including because an asylee has been convicted of an aggravated
felony. However, the provision governing asylee and refugee
adjustment to permanent resident status does not expressly bar
an applicant from obtaining adjustment where the alien has been
convicted of an aggravated felony after obtaining refugee or
asylee status. Not only is this inconsistent with statutory
bars on almost all discretionary immigration relief for
aggravated felons, it is also inconsistent with the treatment
that the asylee or refugee would be accorded after adjustment.
Specifically, an alien who has been granted refugee or asylee
adjustment is barred from obtaining cancellation of removal, a
waiver under section 212(h) of the INA, or section 212(c)
relief from removal if the alien is convicted of an aggravated
felony after attaining such status. Section 605 would have
corrected this discrepancy by barring asylees and refugees
convicted of aggravated felonies from adjustment.
43. Section 606. Removing drunk drivers. The section would
have provided that an illegal alien who was convicted of drunk
driving or who refused to submit to a test to determine blood
alcohol level was removable. Each state motor vehicle
administrator would have had to share with DHS and other states
information regarding any such alien, and would have been
required to enter the information into the NCIC database. DHS
would have been required to detain any illegal alien who was
apprehended for drunk driving or for failing to take a test by
a state or local government law enforcement officer covered by
an agreement with DHS regarding state and local law enforcement
assistance in enforcing the immigration laws. Finally, the
section would have required law enforcement officers who
apprehended persons for drunk driving and had a reasonable
belief that they were aliens to check to see whether they were
present illegally, and to keep them in custody in certain
circumstances.
44. Section 607. Designated county law enforcement
assistance program. Section 607 would have authorized local
sheriffs in the 29 counties along the southern border to
transfer illegal aliens they had arrested to federal custody.
It also would have reimbursed those Sheriffs for costs
associated with detaining illegal aliens they arrested until
they were able to hand them over to federal authorities. The
section would have deemed aliens in Sheriffs' custody to be in
federal custody once determined to be unlawfully present.
45. Section 608. Rendering inadmissible and deportable
aliens participating in criminal street gangs; detention;
ineligibility from protection from removal and asylum. Crime by
alien members of criminal street gangs is exploding. Former ICE
Assistant Secretary Mike Garcia has stated: ``In the last
decade, the United States has experienced a dramatic increase
in the number and size of transnational street gangs. . . .
These gangs have a significant, often a majority, foreign-born
membership . . . .'' Entire neighborhoods and sometimes whole
communities are held hostage by and subjected to the violence
of street gangs. Currently, however, aliens who are members of
criminal street gangs are not deportable or inadmissible, and
can receive asylum and TPS (temporary protected status), until
they are convicted of a specified criminal act. Many of the
members in the United States of these gangs are present in the
U.S. under TPS. One of the most violent and fastest-growing
gangs, Mara Salvatrucha-13, was formed by Salvadorans who
entered the U.S. during the civil war in El Salvador in the
1980s, and has an estimated 8,000 to 10,000 members of MS-13 in
31 states. The gang is estimated to have as many as 50,000
members internationally. There have been 18 MS-13-related
killings in North Carolina, 11 in Northern Virginia, and at
least eight in Los Angeles in the past two years.
Section 608 would have rendered alien gang members
deportable and inadmissible, mandated their detention, and
barred them from receiving asylum or TPS. The section would
have adopted procedures similar to those used by the State
Department to designate foreign terrorist organizations, to
enable the Attorney General to designate criminal street gangs
for purposes of the immigration laws. ``Criminal street gangs''
would have been defined as ``a formal or informal group or
association of three or more individuals, who commit two or
more gang crimes (one of which is a crime of violence . . .) in
two or more separate criminal episodes, in relation to the
group or association.'' ``Gang crime'' would have been defined
as ``conduct constituting any Federal or State crime,
punishable by imprisonment for one year or more'' in various
categories, including crimes of violence, obstruction of
justice, witness tampering, burglary, and drug trafficking.
Tracking the procedures that allow the Secretary of State to
designate foreign terrorist organizations in section 219 of the
INA, the section would have given the Attorney General
authority to designate groups and associations as ``criminal
street gangs.''
46. Section 609. Naturalization reform. Alien terrorists
are deportable and are also barred from admission and most
other forms of immigration relief. However, there are no
express bars for terrorists from being naturalized, the most
significant benefit that the United States can bestow on an
alien. Section 609 would have closed this loophole and barred
alien terrorists from naturalization.
Section 609 would also have corrected other discrepancies
in the naturalization law. When INS was given authority to
grant naturalization, INS was precluded from granting that
benefit as long as the applicant was in removal proceedings.
That preclusion did not, however, apply to district courts,
which retained part of their historic authority over
naturalization. Section 609 would have corrected this
incongruity by barring district court consideration of
naturalization applications while the applicant was in removal
proceedings. Section 609 would also have held in abeyance
petitions to grant status for relatives filed by individuals
who were, themselves, facing denaturalization or removal.
Currently, aliens can go to district court if their
naturalization applications have been pending with DHS for more
than 120 days. Section 209 would have given DHS 180 days to
adjudicate these applications, and limited District Court
relief to remand for adjudication by DHS, making the provision
more in line with traditional mandamus actions. Finally, the
section would have limited court review of DHS's findings with
respect to whether a naturalization applicant had good moral
character, whether the alien understood and was attached to the
principles of the Constitution, and was well disposed to the
good order and happiness of the United States.
47. Section 610. Expedited removal for aliens inadmissible
on criminal or security grounds. This section would have
allowed DHS to use the same expedited procedures that are
available for the removal of aggravated felons to remove other
inadmissible criminal aliens who were not permanent residents
and were otherwise ineligible for relief. At the present time,
these aliens must be placed in lengthy removal proceedings
before an immigration judge despite the fact that they are not
eligible for any relief.
48. Section 611. Technical correction for effective date in
change in inadmissibility for terrorists under REAL ID Act.
Section 103 of the REAL ID Act was designed to ensure the
removal of aliens tied to terrorist organizations. However,
aliens currently in deportation proceedings initiated before
the effective date of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 have claimed that the REAL
ID Act does not apply to them. Section 611 would have clarified
that the amendments in the terrorist grounds of removal in the
REAL ID Act were to be applied to aliens in all removal,
deportation, and exclusion cases, regardless of when those
cases were initiated.
49. Section 612. Bar to good moral character. Applicants
for certain immigration benefits, including naturalization,
voluntary departure, and cancellation of removal, must
demonstrate ``good moral character,'' as defined in the INA. At
present, although the definition excludes (among others)
``habitual drunkards'' and gamblers, it does not expressly
exclude aliens who are terrorists or aiders or supporters of
terrorism. Section 612 would have corrected this discrepancy by
barring terrorist aliens from showing good moral character. In
addition, because the definition of ``good moral character'' in
the INA does not, and could never, cover all situations in
which applicants could be shown not to have good moral
character, this provision would have given the Secretary of
Homeland Security and the Attorney General discretionary
authority to make a good moral character determination in
situations not specifically set forth by the definition. The
section would have clarified that the aggravated felony bar to
good moral character applied regardless of when the crime was
classified as an aggravated felony and clarified the
discretionary authority of DHS to find an alien not to be of
good moral character could be based upon actions that did not
occur within the requisite period of time for which good moral
character must have been established.
50. Section 613. Strengthening definitions of ``aggravated
felony'' and ``conviction''. The ``aggravated felony''
definition in the INA covers both murder and crimes of violence
for which the term of imprisonment is at least one year, but
significantly, it does not specifically include manslaughter
and homicide. Many aliens accused of murder, however, will
plead to these lesser offenses. Section 613 would have ensured
that all aliens who had taken the life of another were covered
by the ``aggravated felony'' definition. In addition, while the
sexual abuse of a minor is an aggravated felony, proof in such
cases can be limited where the victim was a minor, but the
offense does not list the alien's minority status as an
element. Section 613 would have allowed extrinsic evidence to
be offered to establish the minority of the victim in a sexual
abuse case. The section also would have prevented state courts
from interfering in federal immigration law by reversing or
vacating convictions after they had been entered in order to
forestall removal. Some state courts have granted requests by
criminal aliens to revise their sentences and convictions to
allow them to avoid the immigration consequences of their acts,
and have even granted these requests after aliens have served
their sentences. Section 613 would have made it clear that
immigration consequences would continue to attach to
convictions that had been the subject of post-judicial
amendment unless that amendment occurred because the alien was
not guilty of the offense.
51. Section 614. Deportability for criminal offenses. This
section would have rendered removable aliens who had unlawfully
procured citizenship as well as aliens convicted of offenses
relating to misuse of Social Security numbers and cards and
fraud in connection with identification documents.
52. Section 616. Report on criminal alien prosecution. This
section would have required the Attorney General to submit to
Congress an annual report on the status of criminal alien and
smuggling prosecutions.
53. Section 617. Determination of immigration status of
individuals charged with federal offenses. This section would
have required federal prosecutors to identify at the time of
filing whether alien defendants were lawfully present in the
United States, and required records of the U.S. courts to
reflect whether a defendant was an illegal alien. This is
needed because the growing volume of federal criminal cases
involving illegal aliens need to be better documented, and
because this bill would have made illegal presence a federal
crime to be prosecuted in the federal courts.
54. Section 618. Increased criminal penalties for document
fraud and crimes of violence. One of the primary mechanisms for
the flagrant abuse of our immigration laws is the use of
counterfeited immigration documents, the perpetration of
identity fraud, and lying under oath in immigration
applications. This section would have significantly
strengthened criminal penalties for all of these crimes. The
section also would have provided that if an illegal alien
committed a violent crime or a drug trafficking offense, that
the alien should receive a criminal sentence at least five
years longer than he or she would have received otherwise. If
such an illegal alien had been previously ordered deported for
having committed another crime, the alien would receive a
sentence at least 15 years longer than he or she would have
received otherwise.
55. Section 619. Laundering of monetary instruments.
International traffickers and smugglers of human beings are the
most barbaric of immigration violators. They force women and
children into sexual slavery and aliens into indentured
servitude. They place their human cargo in extremely dangerous
circumstances and often abandon them and leave them to die in
the rugged terrain along much of our southwestern border. This
section would have ensured that federal authorities could use
all the powerful tools of our money laundering statutes against
the money laundering activities that these persons engaged in
as part of their criminal enterprises.
56. Sections 701-708 ``Employment eligibility
verification''. The Immigration Reform and Control Act of 1986
made it unlawful for employers to knowingly hire or employ
aliens not eligible to work and required employers to check the
identity and work eligibility documents of all new employees.
The Act was designed to end the ``job magnet'' that draws the
vast majority of illegal aliens to the United States. Under
IRCA, if the documents provided by an employee reasonably
appear on their face to be genuine, an employer has met its
document review obligation. Unfortunately, the easy
availability of counterfeit documents has made a mockery of
IRCA. Fake documents are produced by the millions and can be
obtained cheaply. Thus, the current system both benefits
unscrupulous employers who do not mind hiring illegal aliens
but want to show that they have met legal requirements and
harms employers who don't want to hire illegal aliens but have
no choice but to accept documents they know have a good
likelihood of being counterfeit.
In the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Congress responded to the
deficiencies of IRCA by establishing three employment
eligibility verification pilot programs for volunteer employers
in selected states. Under the basic pilot program, the Social
Security numbers and alien identification numbers of new hires
are checked against Social Security Administration and
Department of Homeland Security records in order to weed out
fraudulent numbers and thus to ensure that new hires are
genuinely eligible to work. A 2001 report on the basic pilot
program found that ``an overwhelming majority of employers
participating found the basic pilot program to be an effective
and reliable tool for employment verification''--96% of
employers found it to be an effective tool for employment
verification; and 94% of employers believed it to be more
reliable than the IRCA-required document check. In 2003,
Congress extended the basic pilot program for another five
years and made it available to employers nationwide.
The basic pilot works as follows:
An employer has three days from the date of
hire to make an inquiry by phone or other electronic
means to the confirmation office. If the new hire
claims to be a citizen, the employer will transmit his
or her name and Social Security number. If the new hire
claims to be a non-citizen, the employer will transmit
his or her name, alien identification number and Social
Security number.
The confirmation office will compare the
name and Social Security number provided against
information contained in Social Security Administration
records and, if necessary, will compare the name and
DHS-issued number provided against information
contained in DHS records.
If in checking the records, the confirmation
office ascertains that the new hire is eligible to
work, the operator will within three days so inform the
employer. If the confirmation office cannot confirm the
work eligibility of the new hire, it will within three
days so inform the employer of a tentative
nonconfirmation.
If a new hire does not contest the tentative
nonconfirmation, it shall be considered a final
nonconfirmation. If a new hire wishes to contest the
tentative nonconfirmation, secondary verification will
be undertaken. Secondary verification is an expedited
procedure set up to confirm the validity of information
contained in the government records and provided by the
new hire. Under this process, the new hire will
typically contact or visit the SSA and/or DHS to see
why the government records disagree with the
information he or she has provided. If the new hire
requests secondary verification, he or she cannot be
fired on the basis of the tentative nonconfirmation.
If the discrepancy can be reconciled within
ten days, then confirmation of work eligibility will be
given to the employer by the end of this period. If the
discrepancy cannot be reconciled within ten days, final
denial of confirmation will be given by the end of this
period. The employer then has two options. It can
dismiss the new hire as being ineligible to work in the
United States or it can continue to employ the new
hire. If the employer continues to employ the new hire,
it must notify DHS of this decision or be subject to
penalty. If legal action is brought by the government
subsequent to such notification, the employer is then
subject to a rebuttable presumption that it has
knowingly hired an illegal alien.
Title VII would have made participation in the basic pilot
program mandatory for all employers within two years of
enactment. It would also have expanded the system to provide
for verification of previously hired employees. Employers would
have been able to use the system to verify previously hired
employees on a voluntary basis (as long as they did not do so
in a discriminatory manner) two years after enactment. By three
years after enactment, federal, state, and local governments
and the military would have been required to verify the
employment eligibility of all workers who had not been
previously subject to verification under the system, as would
have been other employers for those employees working at
federal, state or local government buildings, military bases,
nuclear energy sites, weapons sites, airports, and critical
infrastructure sites. By six years after enactment, all
employers would have been required to verify the employment
eligibility of all workers who had not been previously subject
to verification under the system.
The title would have required DHS to investigate situations
in which a social security number was submitted more than once
by the same employer, or where a social security number was
submitted by multiple employers, in a manner that suggested
fraud. The title exempted employers from liability who relied
in good faith on information provided by the verification
system. The title would have applied employment eligibility
verification requirements to ``day labor'' sites (and would
have prohibited localities from requiring businesses to set up
day labor sites as a condition for conducting or expanding
their business). The title would have established civil
penalties for failure to comply with the employment eligibility
verification requirements and would have increased civil
penalties for knowingly hiring or employing aliens ineligible
to work or for failing to comply with the I-9 process.
The title would have required the Social Security
Administration to conduct a study on the cost and
administrability of the elements of Representative David
Dreier's ``Illegal Immigration Enforcement and Social Security
Protection Act of 2005'' (H.R. 98)--which would have required
hardened, secure Social Security cards with an electronic strip
and digital photograph, the creation of a unified database
between SSA and DHS for employment eligibility verification,
and employers to verify employment eligibility verification of
new hires by swiping the secure social security card through an
electronic card-reader.
57. Section 801. Board of Immigration Appeals removal order
authority. The Ninth Circuit has given aliens additional
opportunities to needlessly hinder their removal by requiring
the Board of Immigration Appeals to remand cases in which it
has reversed an immigration judge decision granting an alien
relief back to the IJ for entry of the order of removal.
Section 801 would have expressly provided the BIA authority to
reverse an IJ decision and enter an order of removal without
remanding to the IJ.
58. Section 802. Judicial review of visa revocation. The
INA allows consular officers to revoke visas after they have
been issued. However, prior to enactment of the Intelligence
Reform and Terrorism Prevention Act of 2004, if a visa was
revoked after an alien entered the United States, the alien was
allowed to remain in the United States under the terms of
admission since there existed no ground of removal for visa
revocation. Section 5304 of the Intelligence Reform Act created
a ground of removal for aliens whose visas were revoked after
entry. This was spurred by a GAO investigation that revealed
that the absence of such a ground posed a risk to the American
people. In October 2002, GAO reported that the State Department
had revoked 105 visas that had been erroneously issued to
aliens, about whom there were questions about possible terror
ties, before their background checks had been completed. GAO
found that immigration agents did not attempt to track down
those aliens whose visas had been revoked because of the
difficulty in removing those aliens from the United States.
DHS's inability to remove aliens after their visas are revoked
is especially problematic in terrorism cases, because
information linking an alien to terrorism is often classified
and classified information cannot be used to prove
deportability. The House acted to close this loophole in the
Intelligence Reform Act by adding a provision to make visa
revocation a freestanding ground of removal. However, in
conference a modification was added stating that visa
revocation decisions would be judicially reviewable if
revocation was the sole basis for the order of removal under
review. This change has rendered the revocation ground of
removal worthless as a removal tool. Not only could such review
disclose the sensitive information that the revocation ground
of removal is intended to protect, but it would also undermine
the consular nonreviewability doctrine, and allow courts to
second-guess all visa denial decisions. Accordingly, section
802 would have removed the judicial review provision added in
the conference.
59. Section 803. Reinstatement. Section 241 of the INA
provides that the government may remove an alien who has
reentered the country illegally after being removed, pursuant
to the prior order of removal. This provision is meant to
preserve judicial resources, and to close the revolving door of
illegal reentry by allowing DHS to summarily deport aliens who
have reentered after removal, without having to obtain a new
removal order from an Immigration Judge. In accordance with
section 241, DHS has promulgated a regulation that permits
reinstatement of removal orders by DHS officers. However, the
Ninth Circuit has recently invalidated DHS's regulation and
held that aliens are entitled to have their reinstatement cases
adjudicated by immigration judges. In fiscal year 2004, prior
to the Ninth Circuit's decision, DHS removed 42,886 aliens in
that circuit through reinstatement. Under the Ninth Circuit's
decision, Immigration Judges now must hear tens of thousands of
additional cases annually from aliens ineligible for relief.
This is a waste of extremely limited resources. Section 803
would have overruled the Ninth Circuit decision, validated
DHS's regulation, and allowed the department to deport an alien
who reentered illegally after being removed without having had
to again place the alien in removal proceedings.
60. Section 804. Withholding of removal. Section 101(a)(3)
of the REAL ID Act required an asylum applicant to show that
one of the five protected characteristics--race, religion,
political opinion, nationality, or membership in a particular
social group--``was or will be at least one central reason''
why the alien was persecuted or fears persecution and thereby
is eligible for asylum. Section 804 would have clarified that
the REAL ID motivation standard for asylum also applied to
withholding of removal. Unless this clarification is made,
applicants for withholding, who have traditionally borne a
higher burden than applicants for asylum, now will be found to
have a lesser burden.
61. Section 805. Certificate of reviewability. There has
been an explosion in the number of petitions for review filed
in the courts of appeals from immigration decisions in the past
few years. In fiscal year 2001, there were 1,654 such petitions
filed. By 2004, 10,681 immigration petitions for review were
filed. The vast majority of these petitions, once reviewed, are
denied. In 2004, for example, the Board of Immigration Appeals'
determinations were sustained by the courts in over 90% of the
cases decided, a rate that has actually increased since the
Board adopted its ``streamlining'' reforms in 2002. Section 805
would have responded to the filing of meritless appeals of
removal orders by establishing a screening process for aliens'
appeals of BIA decisions. Under this provision, appeals would
have been referred to a single circuit court judge for initial
review. If that judge decided that the alien had made a
substantial showing that the alien's petition for review was
likely to be granted, the judge would have issued a
``certificate of reviewability'' allowing the case to proceed
to a three-judge panel. The provision would have focused
limited judicial resources on those petitions for review with
the greatest likelihood of proving meritorious.
62. Section 806. Waiver of rights in nonimmigrant visa
issuance. Currently, aliens seeking to enter the United States
under the visa waiver program must waive access to Immigration
Court to challenge removal by any means other than asylum. No
similar restriction is placed on the other nonimmigrants who
are admitted annually. Section 806 would have imposed the same
review conditions on all nonimmigrant visas that now apply only
to visa waiver admissions, and would have required aliens
seeking to enter temporarily to waive their ability to contest,
other than through asylum, any action to deny them admission or
remove them.
63. Section 807. Clarification of Jurisdiction of Review.
This section would have clarified and reaffirmed existing
limits on federal courts' jurisdiction to review removal orders
pertaining to certain criminal aliens as well as to
discretionary decisions by the Attorney General and Secretary
of Homeland Security. These provisions would have overturned a
series of erroneous Ninth Circuit decisions asserting
jurisdiction where none exists under current law. Consistent
with Congress's intent in enacting the 1996 reforms, the
provisions would have made clear that the federal courts could
not delay the removal of thousands of illegal aliens by
asserting jurisdiction over the purely discretionary decisions
of the Attorney General or the Secretary of Homeland Security;
nor could they assert jurisdiction over factual questions, such
as those relating to criminal aliens, that Congress had
expressly deemed unreviewable.
64. Section 808. Fees and Expenses in Judicial Proceedings.
This section would have clarified the Equal Access to Judgment
Act to limit an alien's collection of attorney's fees from
agency budgets to situations where the alien had prevailed on
the question of removability. Aliens have been permitted in at
least three circuits to recover attorneys' fees as the
prevailing party on petitions for review, even when they have
secured only a remand to the Board and are still potentially
subject to removal. These fee awards are considerable often
exceeding $10,000. If unchecked, substantial DHS financial
resources will have to be expended on alien's attorney's fees,
rather than homeland security. EAJA litigation has added to the
overwhelming caseload of government immigration attorneys.
Abolishing EAJA fee awards in immigration cases for aliens who
are removable would reverse these effects without impairing the
rights of citizens and lawful permanent residents who find
themselves wrongly placed into deportation proceedings.
65. Section 1004. Sense of the Congress. This section would
have stated the sense of Congress that DHS should have taken
all necessary steps to secure the southwest border.
66. Section 1102. Elimination of diversity immigrant
program. This section would have ended the diversity visa
program, under which up to 50,000 randomly selected alien
applicants win immigrant visas each year. Public scrutiny was
drawn to the diversity visa program, also known as the ``visa
lottery,'' in the late summer and early fall of 2002 when it
came to light that Hesham Hedayet, who killed two during a
shooting spree at Los Angeles International Airport on July 4,
2002, received permanent residence under the program. There are
various shortcomings and dangers posed by the visa lottery:
The visa lottery is susceptible to fraud. In
fact, some have argued, the very laxity of its
structure invites fraudulent applications.
The lottery fails to advance any of the
primary goals of our immigration system, in that it
does not serve any humanitarian benefit, to unite
families, or to provide skilled workers for the
American economy. When tens of millions of persons seek
to come to America, it makes no sense to distribute
precious visas by lottery.
Some have also termed the visa lottery unfair
because winners go ahead of the spouses and children of
lawful permanent residents and married sons and
daughters of citizens who have waited for visas, in
some instances, for years.
The most significant danger posed by the program, however,
is the risk that the visa lottery could be used by aliens who
pose a danger to the American people. The State Department's
Inspector General has testified that the lottery program
``contains significant risks to national security from hostile
intelligence officers, criminals, and terrorists attempting to
use the program for entry into the United States as permanent
residents.'' To a large extent, this is because winners of the
lottery need have no ties whatsoever to America, neither family
or employment ties.
67. Section 1201. Oath of Renunciation and Allegiance. In
2003, the Department of Homeland Security proposed changes to
the oath which every naturalized citizen must take which would
have significantly weakened the oath and demeaned its
historical significance. Due to strong public opposition, those
changes were never implemented. However, since the oath is not
set forth in federal statute, but only in regulation, the
agency can modify its language at any time in the future in a
similarly inappropriate way. The oath is the fundamental
statement of allegiance to the United States and our
Constitution, and this allegiance is what unites Americans of
all backgrounds. As the gateway into U.S. citizenship, the oath
should be protected by Congress. This section would have
provided that the current oath laid out in regulation could not
be modified by DHS.
68. Sections 1301-1310 ``Elimination of Corruption and
Prevention of Acquisition of Immigration Benefits through
Fraud''. These sections would have acknowledged that
immigration fraud has become endemic and, even more seriously,
that internal corruption at U.S. Citizenship and Immigration
Services threatens the national security and erodes the
integrity of our immigration system. The extent and seriousness
of the problem was brought to light in a closed bipartisan
session of the Subcommittee on Immigration, Border Security &
Claims of the Judiciary Committee earlier this year. The
serious allegations and investigations discussed there cannot
be discussed in the open. However, the ease with which
unscrupulous immigration officials can be tempted to issue
visas or benefits in return for money, goods, or favors was
brought to light a month ago with the issuance of a Government
Accountability Office report on consular malfeasance. In that
report, it was revealed that the Diplomatic Security Service
had investigated 28 cases of visa selling by State Department
employees in the last few years. Those were only the cases that
were discovered in the some 200 consular sections located
abroad. U.S.C.I.S. conducts its application processing in the
United States, and yet thousands of allegations of misconduct,
some involving criminal acts and foreign influence, have yet to
be investigated because of lack of focus, resources, and
confusion of sub-agency jurisdiction.
These sections would have ensured that an internal law
enforcement division within U.S.C.I.S. would receive, process,
and investigate allegations of misconduct and internal
corruption in a timely manner. The division would also have had
authority to conduct immigration benefit fraud detection
operations and the Director of the division would have had the
authority to subpoena documents, reports, and data, and to
appoint such officers as necessary to carry out the internal
affairs functions. To fund this office, a $10 fee would have
been charged to all visa applicants and applicants for
adjustment of status and extensions of stay.
Legislative History.--Chairman F. James Sensenbrenner, Jr.,
and Chairman Peter King of the Homeland Security Committee
introduced H.R. 4437 on December 6, 2005. On December 8, 2005,
the Judiciary Committee ordered H.R. 4437 reported as amended
by a vote of 23-15. On December 13, 2005, the Judiciary
Committee reported H.R. 4437 (H. Rept. 109-345, Part I). On
December 16, 2005, the House passed H.R. 4437 as amended by a
vote of 239-182. No further action was taken on H.R. 4437.
H.R. 4681, the Palestinian Anti-Terrorism Act of 2006
Summary of provisions within the Jurisdiction of the
Judiciary Committee.--The bill would have provided that with
certain exceptions the U.S. government could only give
assistance to the Palestinian Authority during a period for
which a Presidential certification was in effect finding that
(1) no ministry, agency, or instrumentality of the Authority
was controlled by a foreign terrorist organization, (2) no
member of a foreign terrorist organization served in a senior
policy making position in a ministry, agency, or
instrumentality of the Authority, (3) the Authority had
publically acknowledged Israel's right to exist as a Jewish
state, (4) the Authority had recommitted itself and is adhering
to all previous agreements and understandings by the Palestine
Liberation Organization and the Authority with the United
States, Israel, and the international community (including the
``Roadmap to Peace''), and (5) the Authority had taken
effective steps and made demonstrable progress toward
completing the process of purging from its security services
individuals with ties to terrorism; dismantling all terrorist
infrastructure, confiscating unauthorized weapons, arresting
and bringing terrorists to justice, destroying unauthorized
arms factories, thwarting and preempting terrorist attacks, and
fully cooperating with Israel's security services; halting all
anti-Israel incitement in Authority-controlled electronic and
print media and in schools, mosques, and other institutions it
controlled, and replacing these materials, including textbooks,
with material that promote tolerance, peace, and coexistence
with Israel; ensuring democracy, the rule of law, and an
independent judiciary, and adopting other reforms such as
ensuring transparent and accountable governance; and ensuring
the financial transparency and accountability of all government
ministries and operations.
Within the jurisdiction of the Judiciary Committee, the
bill would have provided that a visa would not be issued to any
alien who was an official of, affiliated with, or serving as a
representative of the Palestinian Authority during any period
for which such a certification was not in effect. This bar to
visa issuance would not apply if the President determined and
certified to the appropriate congressional committees, on a
case-by-case basis, that the issuance of a visa to such an
alien was important to the national security interests of the
U.S. or with respect to visas issued in connection with U.S.
obligations to let officials of governments into the U.S. for
United Nations business.
The bill also would have provided that it would be unlawful
to establish or maintain an office within the jurisdiction of
the United States at the behest or direction of, or with funds
provided by, the Palestinian Authority or the Palestine
Liberation Organization during any period for which a
Presidential certification was not in effect with respect to
the Authority. (The President was provided with waiver
authority.) The Attorney General would have been required to
take the necessary steps and institute the necessary legal
action to effectuate this provision, including steps necessary
to apply it to the Permanent Observer Mission of Palestine to
the United Nations.
Legislative History.--On February 1, 2006, Representative
Ileana Ros-Lehtinen introduced H.R. 4681. On April 6, 2006, the
International Relations Committee ordered H.R. 4681 reported as
amended by a vote of 36-2. On May 10, 2006, the Judiciary
Committee ordered H.R. 4681 reported as amended by a voice
vote. On May 11, 2006, the International Relations Committee
reported H.R. 4681 (H. Rept. 109-462, Part I). On May 15, 2006,
the Judiciary Committee reported H.R. 4681 (H. Rept. 109-462,
Part II). On May 23, 2006, the House passed H.R. 4681 under
suspension of the rules by a vote of 361-37, with 9 members
voting present. No further action was taken on H.R. 4681.
H.R. 6094, the Community Protection Act of 2006
Summary.--The Community Protection Act includes (1) the
Dangerous Alien Detention Act of 2006, a modified version of
section 602 of H.R. 4437, (2) the Criminal Alien Removal Act,
containing the language of section 610 of H.R. 4437, and (3)
the Alien Gang Removal Act of 2006, containing the language of
section 608 of H.R. 4437.
Legislative History.--On September 19, 2006, Chairman F.
James Sensenbrenner, Jr., introduced H.R. 6094. On September
21, 2006, the House passed H.R. 6094 by a vote of 328-95. No
further action was taken on H.R. 6094.
H.R. 6095, the Immigration Law Enforcement Act of 2006
Summary.--The Immigration Law Enforcement Act includes
State and Local Law Enforcement Cooperation in the Enforcement
of Immigration Law Act, containing the language of section 220
of H.R. 4437.
The bill also includes the Alien Smuggler Prosecution Act.
The various United States Attorney offices do not use uniform
guidelines for the prosecution of smuggling offenses.
Understanding that border-area U.S. Attorneys face an
overwhelming workload, a lack of sufficient smuggling
prosecutions in some areas has only encouraged additional
smuggling and has demoralized Border Patrol and DHS agents who
have seen released many of the smugglers they have apprehended.
This title would have provided a Sense of Congress that the
Attorney General should adopt uniform guidelines for the
prosecution of smuggling offenses to be followed by each United
States Attorney's office and would have authorized in each of
the fiscal years 2008 through 2013 an increase in the number of
attorneys in United States Attorneys offices to prosecute such
cases of not less than 20 over the previous year's level.
The bill also includes the Ending Catch and Release Act of
2006. The Department of Homeland Security is subject to
injunctions entered as much as 30 years ago that impact its
ability to enforce the immigration laws. For instance, one
injunction dating from the El Salvadoran civil war of the 1980s
effectively prevents DHS from placing Salvadorans in expedited
removal proceedings. DHS is using expedited removal to
expeditiously remove other non-Mexican illegal immigrants who
are apprehended along the Southern border in order to end the
policy of ``catch and release''. This title would have resulted
in the end of the Salvadoran injunction by establishing
requirements under which courts could order prospective relief
in immigration cases, and by requiring courts to promptly rule
on government motions to vacate, modify, dissolve, or otherwise
terminate orders granting prospective relief in immigration
cases and stay orders granting such relief.
Legislative History.--On September 19, 2006, Chairman F.
James Sensenbrenner, Jr., introduced H.R. 6095. On September
21, 2006, the House passed H.R. 6095 by a vote of 277-140. No
further action was taken on H.R. 6095.
H.R. 5323, the Proud to be an American Citizen Act
Summary.--H.R. 5323, the ``Proud to be an American Citizen
Act'' would have enabled U.S. Citizenship and Immigration
Services or non-profit entities to conduct naturalization
ceremonies on or near Independence Day each year. It would have
directed the Department of Homeland Security to make available
up to $5,000 per ceremony from funds already available to the
Department, thus not authorizing the expenditure of new funds
for the ceremonies. The funds (up to $5,000) could have been
used only for the cost of government personnel needed to
administer the Oath of Allegiance (including travel),
facilities rental, brochures, and other logistics such as
sanitation. The bill would have required any non-government
entity seeking to organize a naturalization ceremony to receive
approval under an application process prescribed by the
Department of Homeland Security.
Legislative History.--On May 9, 2006, Representative Sam
Farr introduced H.R. 5323. On June 29, 2006, the Judiciary
Committee ordered H.R. 5323 reported by a voice vote. On July
17, 2006, the Judiciary Committee reported H.R. 5323 (H. Rept.
109-576). On September 25, 2006, the House passed H.R. 5323
under suspension of the rules by a voice vote. No further
action was taken on H.R. 5323.
FEDERAL CHARTERS
Subcommittee policy on new federal charters
On March 10, 2005, the Subcommittee on Immigration, Border
Security, and Claims adopted the following policy concerning
the granting of new federal charters:
The Subcommittee will not consider any legislation to grant
new federal charters because such charters are unnecessary for
the operations of any charitable, non-profit organization and
falsely imply to the public that a chartered organization and
its activities carry a congressional ``seal of approval,'' or
that the Federal Government is in some way responsible for its
operations. The Subcommittee believes that the significant
resources required to properly investigate prospective
chartered organizations and monitor them after their charters
are granted could and should be spent instead on the
Subcommittee's large range of legislative and other substantive
policy matters. This policy is not based on any decision that
the organizations seeking federal charters are not worthwhile,
but rather on the fact that federal charters serve no valid
purpose and therefore ought to be discontinued.
This policy represented a continuation of the
Subcommittee's informal policy, which was put in place at the
start of the 101st Congress and has been continued every
Congress since, against granting new federal charters to
private, non-profit organizations.
A federal charter is an Act of Congress passed for private,
non-profit organizations. The primary reasons that
organizations seek federal charters are to have the honor of
federal recognition and to use this status in fundraising.
These charters grant no new privileges or legal rights to
organizations. At the conclusion of the 104th Congress,
approximately 90 private, non-profit organizations had federal
charters over which the Judiciary Committee has jurisdiction.
About half of these had only a federal charter, and were not
incorporated in any state and thus not subject to any state
regulatory requirements.
Those organizations chartered more recently are required by
their charters to submit annual audit reports to Congress,
which the Subcommittee sent to the General Accounting Office to
determine if the reports comply with the audit requirements
detailed in the charter. The GAO does not conduct an
independent or more detailed audit of chartered organizations.
PRIVATE BILLS
During the 109th Congress, the Subcommittee on Immigration
and Claims received referral of 4 private claims bills, 1
private claims resolution, and 77 private immigration bills.
The Subcommittee held no hearings on these bills. The
Subcommittee recommended 1 private claims resolution and 2
private immigration bills to the full Committee. The Committee
ordered no private claims resolutions or private immigration
bills reported favorably to the House.
SUMMARY OF OVERSIGHT HEARINGS
Immigration enforcement resources authorized in the Intelligence Reform
and Terrorism Prevention Act of 2004, March 3, 2005 (Serial No.
109-4)
Witnesses: Mr. Peter Gadiel, 9-11 Families for a Secure
America; Mr. T.J. Bonner, President, National Border Patrol
Council; Mr. Robert Eggle, Father of Kris Eggle, slain National
Park Service Ranger; The Honorable Solomon P. Ortiz, 27th
District of Texas.
Interior immigration enforcement resources, March 10, 2005 (Serial No.
109-5)
Witnesses: Mr. Paul Martin, Deputy Inspector General, U.S.
Department of Justice; Mr. Michael Cutler, Former Special
Agent, Immigration and Naturalization Service; Mr. Randy
Callahan, Vice President, National Homeland Security Council;
Dr. Craig Haney, Professor, University of California at Santa
Cruz.
Immigration and the alien gang epidemic: Problems and solutions, April
13, 2005 (Serial No. 109-8)
Witnesses: The Honorable Michael Garcia, Assistant
Secretary for Immigration and Customs Enforcement, U.S.
Department of Homeland Security; Ms. Marsha Garst,
Commonwealth's Attorney for Rockingham County, Virginia; Ms.
Heather MacDonald, Senior Fellow, The Manhattan Institute; Ms.
Mai Fernandez, Chief Operating Officer, Latin American Youth
Center.
October 2005 statutory deadline for visa waiver program countries to
produce security passports: Why it matters to Homeland
Security, April 21, 2005 (Serial No. 109-23)
Witnesses: Mr. Rudi Veestraeten, Director General for
Consular Affairs, Belgian Ministry of Foreign Affairs; Ms.
Elaine Dezenski, Acting Assistant Secretary for Policy and
Planning, Border and Transportation Security Directorate, U.S.
Department of Homeland Security; Mr. Richard L. Skinner, Acting
Inspector General, U.S. Department of Homeland Security; Mr.
Joel F. Shaw, President/CEO, BioDentity Systems Corporation.
New jobs in recession and recovery: Who are getting them and who are
not?, May 4, 2005 (Serial No. 109-39)
Witnesses: Dr. Steven Camarota, Director of Research,
Center for Immigration Studies; Dr. Paul Harrington, Associate
Director, Center for Labor Market Studies, Northeastern
University; Mr. Matthew J. Reindl, Stylecraft Interiors; Dr.
Harry J. Holzer, Professor and Associate Dean of Public Policy,
Georgetown University.
The Olympic Family--Functional or Dysfunctional?, June 9, 2005 (Serial
No. 109-81)
Witnesses: Mr. Jim Scherr, Chief Executive Officer, United
States Olympic Committee; Mr. Mark Henderson, Chair, Athletes'
Advisory Council; Mr. Paul Hamm, 2004 Athens Olympics All
Around Champion; Mr. Thomas Burke, Vice Chair, Pan American
Sports Council, USOC.
Diversity Visa Program, June 15, 2005 (Serial No. 109-49)
Witnesses: Howard J. Krongard, Inspector General, United
States Department of State; Mark Krikorian, Center for
Immigration Studies; Rosemary Jenks, Numbers USA; Bruce
Morrison, Chairman, Morrison Public Affairs Group.
Lack of worksite enforcement & employer sanctions, June 21, 2005
(Serial No. 109-51)
Witnesses: Mr. Richard M. Stana, Director of Homeland
Security and Justice Issues, U.S. Government Accountability
Office; Mr. Terence P. Jeffrey, Editor, Human Events; Mr. Carl
W. Hampe, Partner, Baker & McKenzie, LLP; Ms. Jennifer Gordon,
Associate Professor of Law, Fordham Law School.
Immigration removal procedures implemented in the aftermath of the
September 11th attacks, June 30, 2005 (Serial No. 109-54)
Witnesses: Lily Swenson, Deputy Associate Attorney General,
U.S. Department of Justice; Joseph R. Greene, Director of
Training and Development, Department of Homeland Security; Paul
Rosenzweig, Senior Legal Research Fellow, the Heritage
Foundation; William D. West, Former Supervisory Special Agent,
INS.
Sources and methods of foreign nationals engaged in economic and
military espionage, September 15, 2005 (Serial No. 109-58)
Witnesses: The Honorable Michelle Van Cleave, National
Counterintelligence Executive, Office of the Director of
National Intelligence; Dr. Larry Wortzel, Visiting Fellow, The
Heritage Foundation; Mr. Maynard Anderson, President, Arcadia
Group Worldwide, Inc., Former Deputy Under Secretary of Defense
for Security Policy; Dr. William A. Wulf, President, National
Academy of Engineering.
Dual citizenship, birthright citizenship, and the meaning of
sovereignty, September 29, 2005 (Serial No. 109-63)
Witnesses: Dr. Stanley Renshon, Professor, City University
of New York Graduate Center; Dr. John Fonte, Senior Fellow, The
Hudson Institute; Dr. John Eastman, Professor, Chapman
University School of Law; Mr. Peter Spiro, Associate Dean for
Faculty Development and Dean and Virginia Rusk Professor of
International Law, University of Georgia School of Law.
How illegal immigration impacts constituencies: Perspectives from
Members of Congress, November 10 and 17, 2005 (Serial Nos. 109-
73 and 109-76)
Witnesses: The Honorable Henry Bonilla, 23rd District,
Texas; the Honorable Stevan Pearce, 2nd District, New Mexico;
The Honorable Luis Gutierrez's, 4th District, Illinois; the
Honorable Jack Kingston, 1st District, Georgia; the Honorable
Marsha Blackburn, 7th District, Tennessee; the Honorable John
Carter, 31st District, Texas; the Honorable John Lewis, 5th
District, Georgia.
Joint Oversight Hearing on weak bilateral law enforcement presence at
the U.S.-Mexico border: Territorial integrity and safety issues
for American citizens, November 17, 2005 (Serial No. 109-90)
Witnesses: Mr. Chris Swecker, Assistant Director, Criminal
Investigative Division, Federal Bureau of Investigation; Mr.
William Reid, Acting Assistant Director, Office of
Investigations, U.S. Immigration & Customs Enforcement; Mr. Rey
Garza, Deputy Chief Patrol Agent, U.S. Customs and Border
Protection; Mr. T.J. Bonner, President, National Border Patrol
Council.
The Energy Employees Occupational Illness Compensation Program Act: Are
we fulfilling the promise we made to Cold War veterans when we
created the program?, March 1, May 4, July 20, November 15th,
and December 5th, 2006 (Serial Nos. 109-110, 109-151, 109-139,
X, Y)
Witnesses: Shelby Hallmark, Director for the Office of
Worker's Compensation Programs, United States Department of
Labor; John Howard, M.D., Director, National Institute for
Occupational Safety and Health; James Melius, M.D., DrPH.,
Administrator, New York State Laborers Health and Safety Trust
Fund, Member of the Advisory Board on Radiation and Worker
Health; Richard Miller, Senior Policy Analyst, Government
Accountability Project; the Honorable Zach Wamp, 3rd District,
Tennessee; the Honorable Tom Udall, 3rd District, New Mexico;
the Honorable Doc Hastings, 4th District, Washington; the
Honorable Mark Udall, 2nd District, Colorado; Austin Smythe,
Acting Deputy Director, Office of Management and Budget; Lewis
Wade, PhD., Special Assistant to the Director, National
Institute for Occupational Safety and Health; Denise Brock,
Director, United Nuclear Weapons Workers; Laurence Fuortes
M.D.Professor, Department of Occupational and Environmental
Health, University of Iowa; John Mauro, Sanford, Cohen, and
Associates; Kathy Bates Surviving Claimant under the Energy
Employees Occupational Illness Compensation Program Act;
Richard Miller, Senior Policy Analyst, Government
Accountability Project; Shelby Hallmark Director for the Office
of Worker's Compensation Programs, United States Department of
Labor; John Howard M.D., Director, National Institute for
Occupational Safety and Health; and Daniel Bertoni, Director,
Education, Workforce, and Income Security Issues, United States
Government Accountability Office.
Joint Oversight Hearing on Outgunned and Outmanned: Local law
enforcement confronts violence along the southern border, March
2, 2006 (Serial No. 109-85)
Witnesses: Sheriff Leo Samaniego, El Paso County Sheriff's
Office, El Paso, Texas; Sheriff Larry Dever, Cochise County
Sheriff's Office, Bisbee, Arizona; Sheriff Todd Garrison, Dona
Ana County Sheriff's Office, Las Cruces, New Mexico; Sheriff
Sigifredo Gonzalez, Jr., Zapata County Sheriff's Office,
Zapata, Texas.
Should Congress raise the H-1B cap?, March 30, 2006 (Serial No. 109-95)
Witnesses: John M. Miano, Chief Engineer, Colosseum
Builders, Inc.; Stuart Anderson, Executive Director, National
Foundation for American Policy; David Huber, Information
Technology Professional, Chicago, Illinois; Dr. Delbert Baker,
President, Oakwood College.
The need to implement WHTI to protect U.S. Homeland Security, June 8,
2006 (Serial No. 109-117)
Witnesses: Janice L. Kephart, Principal and Managing
Member, 9/11 Security Solutions, LLC; David Harris, Director,
Insignis Strategic Research, Inc.; Paul Rosenzweig, Acting,
Assistant Secretary for Policy Development, United States
Department of Homeland Security; Roger Dow, President and Chief
Executive Officer, Travel Industry Association of America.
Is the Labor Department doing enough to protect U.S. workers? June 22,
2006 (Serial No. 109-149)
Witnesses: Sigurd L. Nilsen, Ph.D. , Director for
Education, Workforce, and Income Security Issues, United States
Government Accountability Office; Alfred Robinson, Acting
Director, Wage and Hour Administration, Employment Standards
Administration, United States Department of Labor; John M.
Miano, Director, Programmers Guild; Ana Avendano, Associate
General Counsel and Director, Immigrant Worker Program,
American Federation of Labor-Congress of Industrial
Organizations.
Should we embrace the Senate's grant of amnesty to millions of illegal
aliens and repeat the mistakes of the Immigration Reform and
Control Act of 1986?, July 18, 2006 (Serial No. 109-127)
Witnesses: The Honorable Silvestre Reyes, 16th District,
Texas; Phyllis Schlafly, President, Eagle Forum; Steven
Camarota, Director of Research, Center for Immigration Studies;
James R. Edwards, Jr., Adjunct Fellow, Hudson Institute.
Whether attempted implementation of the Senate Immigration Bill will
result in an administrative and national security nightmare,
July 27, 2006 (Serial No. 109-130)
Witnesses: Peter Gadiel, President, 9/11 Families for a
Secure America; Michael Maxwell, former Director of the Office
of Security and Investigations, USCIS; Michael Cutler, former
INS Examiner, Inspector, and Special Agent; His Excellency
Nicholas DiMarzio, the Bishop of the Brooklyn Diocese, the
Roman Catholic Church.
SUMMARY OF LEGISLATIVE HEARINGS
May 12, 2005: Legislative Hearing on H.R. 98, the ``Illegal Immigration
Enforcement and Social Security Protection Act of 2005.''
(Serial No. 109-35)
Witnesses: The Honorable David Dreier, 26th District,
California; the Honorable Silvestre Reyes, 16th District,
Texas; TJ Bonner, President, National Border Patrol Council;
Marc Rotenberg, Executive Director, Electronic Privacy
Information Center.
June 28, 2005: Legislative Hearing on H.R. 2933, ``The Alien Gang
Removal Act of 2005.'' (Serial No. 109-52)
Witnesses: The Honorable J. Randy Forbes, 4th District,
Virginia; Kris W. Kobach, Associate Professor of Law,
University of Missouri Kansas City; Michael Hethmon, Staff
Attorney, Federation of American Immigration Reform; David
Cole, Professor, Georgetown University Law School.
May 18, 2006: Legislative Hearing on H.R. 4997, ``The Physicians for
Underserved Areas Act.'' (Serial No. 109-111)
Witnesses: The Honorable Jerry Moran, 1st District, Kansas;
Edward Salsberg, Director, Center for Workforce Studies,
Association of American Medical Colleges; John B. Crosby,
J.D.,Executive Director, The American Osteopathic Association;
Leslie G. Aronovitz, Director, Health Care, United States
Government Accountability Office.
SUMMARY OF FULL COMMITTEE FIELD HEARINGS
How does illegal immigration impact American taxpayers and will the
Reid-Kennedy Amnesty worsen the blow?, August 2, 2006, San
Diego, California (Serial No. 109-135)
Witnesses: the Honorable Michael D. Antonovich, L.A. County
Supervisor; Mr. Kevin J. Burns, Chief Financial Officer,
University Medical Center, Tucson; Mr. Robert Rector, The
Heritage Foundation; Mr. Leroy Baca, Los Angeles County
Sheriff; Professor Wayne Cornelius, University of California,
San Diego.
Should Mexico hold veto power over U.S. border security decisions?,
August 17, 2006, El Paso, Texas (Serial No. 109-147)
Witnesses: Sheriff Leo Samaniego, Sheriff of El Paso County
Texas; Alison Siskin, Senior Analyst, Congressional Research
Service; Andrew Ramirez, Chairman, Friends of the Border
Patrol; Chief Richard Wiles, El Paso Police Department, El
Paso, Texas; Kathleen Walker, President-Elect of the American
Immigration Lawyers Association.
The Reid-Kennedy Bill's Amnesty: Impacts on taxpayers, fundamental
fairness, and the Rule of Law, August 24, 2006, Concord, New
Hampshire (Serial No. 109-153)
Witnesses: The Honorable Andrew Renzullo, New Hampshire
State Representative; Steven Camarota, Director of Research,
Center for Immigration Studies; Peter Gadiel, President, 9/11
Families for a Secure America; Dr. John Lewy, American Academy
of Pediatrics; John Young, Co-Chair, The Agricultural Coalition
for Immigration Reform.
The Reid-Kennedy Bill: The effect on American workers' wages and
employment opportunities, August 29, 2006, Evansville, Indiana
(Serial No. 109-129)
Witnesses: Vernon Briggs, Professor of Industrial and Labor
Relations, Cornell University; Steven Camarota, Director of
Research, Center for Immigration Studies; Paul Harrington,
Associate Director, Center for Labor Market Studies,
Northeastern University; Ricardo Parra, Midwest Council of La
Raza.
Is the Reid-Kennedy Bill a repeat of the failed Amnesty of 1986?,
September 1, 2006, Dubuque, Iowa (Serial No. 109-142)
Witnesses: The Honorable Charles Grassley, United States
Senator from the State of Iowa; Michael W. Cutler, Former
Inspector, Examiner, and Special Agent, Immigration and
Naturalization Service; John Fonte, PhD., Director, Center for
American Common Culture, Hudson Institute; Councilwoman Ann E.
Michalski, City Council of Dubuque, Iowa; Professor Robert Lee
Maril, Chair, Department of Sociology, East Carolina
University.
SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW
CHRIS CANNON, Utah, Chairman
MELVIN L. WATT, North Carolina HOWARD COBLE, North Carolina
WILLIAM D. DELAHUNT, Massachusetts TRENT FRANKS, Arizona
CHRIS VAN HOLLEN, Maryland STEVE CHABOT, Ohio
JERROLD NADLER, New York MARK GREEN, Wisconsin
DEBBIE WASSERMAN SCHULTZ, Florida J. RANDY FORBES, Virginia
LOUIE GHOMERT, Texas
Tabulation of subcommittee legislation and activity
Legislation referred to the Subcommittee......................... 41
Legislation reported favorably to the full Committee............. 4
Legislation reported adversely to the full Committee............. 0
Legislation reported without recommendation to the full Committee 0
Legislation reported as original measure to the full Committee... 0
Legislation discharged from the Subcommittee..................... 2
Legislation ordered tabled in the Subcommittee................... 0
Legislation pending before the full Committee.................... 1
Legislation reported to the House................................ 4
Legislation discharged from the Committee........................ 0
Legislation pending in the House................................. 4
Legislation passed by the House.................................. 1
Legislation pending in the Senate................................ 0
Legislation vetoed by the President.............................. 0
Legislation enacted into public law.............................. 1
Legislation enacted into public law as part of another bill...... 0
Legislation on which hearings were held.......................... 8
Days of legislative hearings..................................... 8
Days of oversight hearings....................................... 13
Jurisdiction of the Subcommittee
The Subcommittee on Commercial and Administrative Law has
jurisdiction over the following subject matters: administrative
law, bankruptcy and bankruptcy judgeships, commercial law,
independent counsel, interstate compacts, certain matters
pertaining to privacy, State taxation affecting interstate
commerce, oversight of the Justice Department and relevant
agencies, and other matters as referred by the Chairman.
Legislative Activities
ADMINISTRATIVE LAW
H.R. 682, The ``Regulatory Flexibility Improvements Act''
Summary.--H.R. 682, the ``Regulatory Flexibility
Improvements Act,'' consists of a comprehensive set of reforms
intended to encourage Federal agencies ``to analyze and uncover
less costly alternative regulatory approaches'' and to ensure
that ``all impacts, including foreseeable indirect effects, of
proposed and final rules are considered by agencies during the
rulemaking process.'' \1\ It amends the Regulatory Flexibility
Act (RFA),\2\ among other provisions.
---------------------------------------------------------------------------
\1\ H.R. 682, Sec. 2, 109th Cong. (2005).
\2\ Pub. L. No. 96-354, 94 Stat. 1164 (codified at 5 U.S.C.
Sec. Sec. 601-612).
---------------------------------------------------------------------------
Enacted in 1980, the RFA requires Federal agencies to
assess the impact of proposed regulations on ``small
entities,'' which the RFA defines as either a small business,
small organization, or small governmental jurisdiction.\3\ One
of the principal purposes of the RFA is to address
``unnecessary and disproportionately burdensome demands'' that
Federal regulatory and reporting requirements place on small
entities.\4\ This analysis is not required, however, if the
agency certifies that the rule will not have a ``significant
economic impact on a substantial number of small entities.''
\5\ As amended in 1996,\6\ the RFA permits judicial review
under certain circumstances of, among other matters, an
agency's regulatory flexibility analysis for a final rule and
any certification by an agency averring that a rule will not
have a significant economic impact on a substantial number of
small entities.\7\
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\3\ 5 U.S.C. Sec. 601(6) (2000).
\4\ Pub. L. No. 96-354, Sec. 2(a)(3), 94 Stat. 1164 (1980).
\5\ 5 U.S.C. Sec. 605(b) (2000).
\6\ Small Business Regulatory Enforcement Fairness Act of 1996,
Pub. L. No. 104-121, Sec. 242, 110 Stat. 847, 857 (1996).
\7\ 5 U.S.C. Sec. 611 (2000).
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Since its enactment, certain deficiencies within the RFA
have been identified. The Government Accountability Office
(GAO), for example, has on several occasions reported on the
Act's uneven implementation and lack of clarity. In 1991, the
GAO cited weaknesses in the Act and how it was implemented by
the Small Business Administration (SBA).\8\ Based on a report
it prepared the previous year,\9\ the GAO testified at a
hearing in 1995 before the Senate Small Business Committee that
agencies' compliance with the RFA ``varied widely from one
agency to another.'' \10\ Even after the enactment of the Small
Business Regulatory Enforcement Fairness Act, which amended the
RFA in several significant respects, the GAO in 2002 reported
that agencies' compliance was still deficient.\11\
---------------------------------------------------------------------------
\8\ U.S. Government Accountability Office, Regulatory Flexibility
Act: Inherent Weaknesses May Limit Its Usefulness for Small
Governments, GAO/HRD-91-16 (Jan. 11, 1991). The report was particularly
critical of the SBA. See, e.g., id. at 2 (noting, for example, that
``[w]hile the SBA can address some of these problems, it has not over
the past decade'').
\9\ U.S. Government Accountability Office, Regulatory Flexibility
Act: Status of Agencies' Compliance, GAO/GGD-94-105 (Apr. 27, 1994).
\10\ Regulatory Flexibility Act--Status of Agencies' Compliance:
Hearing Before the S. Comm. on Small Business, 104th Cong. 51 (1995)
(statement of Johnny C. Finch, Assistant Comptroller General--General
Government Division, U.S. Government Accountability Office). The GAO
witness explained the reasons for such noncompliance:
(1) the act does not expressly authorize SBA or any other entity to
interpret key statutory provisions such as ``significant economic
impact'' or ``substantial number of small entities;'' (2) the act does
not require SBA or any other entity to develop criteria for agencies to
follow in reviewing their rules; (3) in the absence of this express
authority or requirement, no guidance has been issued to federal
agencies defining key statutory provisions; and (4) the act does not
authorize SBA or any other entity to compel rulemaking agencies to
comply with its provisions.
\11\ SBBEFA Compliance--Is It the Same Old Story?: Hearing Before
the H. Comm. on Small Business, 107th Cong. 51 (2002) (statement of
Victor Rezendes, Managing Director--Strategic Issues Team, U.S.
Government Accountability Office).
---------------------------------------------------------------------------
Legislative History.--Representative Donald Manzullo (R-
IL), Chair of the House Committee on Small Business, introduced
H.R. 682, the ``Regulatory Flexibility Improvements Act,'' on
February 9, 2005. In the 108th Congress, he introduced similar
legislation.\12\ The legislation is supported by the United
States Chamber of Commerce \13\ and the National Federation of
Independent Businesses.\14\ OMB Watch, an advocacy
organization, asserted that the bill's requirements would have
a ``troubling'' impact on the regulatory process.\15\ The
Subcommittee held a hearing on H.R. 682, on July 20, 2006.
Witnesses at the hearing included: the Honorable Thomas
Sullivan, Chief Counsel for Advocacy, United States Small
Business Administration; Christopher Mihm, Director of
Strategic Issues at GAO; J. Robert Shull, Director of
Regulatory Policy, OMB Watch; and David Frulla, Esq. from the
law firm of Kelley Drye Collier Shannon.
---------------------------------------------------------------------------
\12\ H.R. 2345, 108th Cong. (2003).
\13\ See, e.g., The RFA at 25: Needed Improvements for Small
Business Regulatory Relief: Hearing Before the H. Comm. on Small
Business, 109th Cong. 11 (2005) (statement of Marc Freedman, Director,
Labor Law Policy, U.S. Chamber of Commerce).
\14\ See, e.g., National Federation of Independent Business,
Current Legislation--Key Bills in Congress, http://capwiz.com/nfib/
issues/bills (last visited July 6, 2006).
\15\ By requiring agencies to review all such rules every ten
years, this bill would drain agency resources by diverting them away
from protecting the public and into navel-gazing analyses. Even proven
protections such as the ban on lead in gasoline and safeguards
protecting workers against black lung would be subject to these
reassessments. These analyses would be even more burdensome than under
current law, because the bill would force agencies to calculate
reasonably foreseeable indirect economic effects, which agency
representatives at a recent Senate roundtable suggested would be so
speculative as to be useless for policymakers.--OMB Watch, Regulatory
Impact--In Congress, http://www.ombwatch.org/article/articleview/2936/
1/308?TopicID=1(last visited July 6, 2006).
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COMMERCIAL LAW
H.R. 800, the ``Lawful Commerce in Arms Act''
Summary.--H.R. 800, the ``Lawful Commerce in Arms Act,''
intends to provide protection for firearms manufacturers from
lawsuits arising out of the acts of people who criminally or
unlawfully misuse their products, protecting all citizens'
constitutionally protected right to bear arms.
H.R. 800 provides that a ``qualified civil liability
action'' cannot be brought in any state or Federal court. A
``qualified civil liability action'' is defined to be a civil
action, administrative proceeding, or any other proceeding
brought by a person against a manufacturer, seller, or a trade
association for damages resulting from the criminal or unlawful
misuse of a qualified firearms product.\16\ The bill was not
intended to prevent legal actions for negligent sales or
entrustments, sales that knowingly violate state or Federal
statutes, actions in breach of contract or warranty, or actions
for death, physical injuries, or property damage resulting
directly from a defect in design or manufacture of a product.
---------------------------------------------------------------------------
\16\ H.R. 800 Sec. 4, 109th Cong. (2005).
---------------------------------------------------------------------------
Legislative History.--H.R. 800 was introduced by
Representative Cliff Stearns (R-FL) on February 15, 2005. The
Subcommittee held a legislative hearing on March 15, 2005.
Witnesses who testified at the hearing included: Rodd Walton,
Secretary and General Counsel, Sigarms, Inc.; Dennis Henigan,
Director, Legal Action Project, Brady Center to Prevent Gun
Violence; Bradley Beckman, Counsel to North American Arms,
Beckman and Associates; and Lawrence Keane, Senior Vice
President and General Counsel, National Shooting Sports.
On April 11, 2005, the Subcommittee was discharged from
further consideration of H.R. 800. Thereafter, the Committee
met on April 20, May 18, and May 25, 2005 to markup the bill.
The Committee ordered H.R. 800 to be favorably reported on May
25, 2005, with an amendment, by a recorded vote of 22 yeas to
12 nays.\17\ The Senate companion bill, S. 397, the
``Protection of Lawful Commerce in Arms Act,'' passed in the
Senate on July 29, 2005 by a vote of 65 to 31. It was received
in the House on September 6, 2005 and passed on October 20,
2005. S. 397 was signed by the President and became Public Law
109-92 on October 26, 2005.
---------------------------------------------------------------------------
\17\ H.R. Rep. No. 109-124, at 38 (2005).
---------------------------------------------------------------------------
H.R. 3509, the ``Workplace Goods Job Growth and Competitiveness Act of
2005''
Summary.--H.R. 3509, the ``Workplace Goods Job Growth and
Competitiveness Act of 2005,'' would provide for a nationwide
statute of repose of twelve years for durable goods used in the
workplace. This legislation would prevent manufacturers from
being held liable in suits concerning products that have long
since left their control. Statutes of repose have been enacted
in a number of states to counter the long tail of liability
that American manufacturers must endure. Approximately 12
states currently have statutes of repose for products, and
among those states there is a clear consensus that the period
of repose should be 12 years or less.\18\ However, as
manufacturers sell goods in all 50 states, a national statute
of repose is needed to effectively address their liability
exposure. H.R. 3509 was intended to be a narrowly crafted
remedy to meet the needs of manufacturers of durable workplace
goods who face serious long tail liability exposure. The bill
would not apply to consumer goods.
---------------------------------------------------------------------------
\18\ See, e.g., Colo. Rev. Stat. Ann. Sec. 13-80-107 (seven year
statute of repose on manufacturing equipment); Conn. Gen. Stat.
Ann.Sec. 52-577a (ten year statute of repose on manufacturing
equipment); Ga. Code Ann. Sec. 51-1-11 (ten year statute of repose for
products); 735 Ill. Comp. Stat. Ann. 5/13-213 (12 year statute of
repose for products); Ind. Code Sec. 34-20-3-1 (ten year statute of
repose for products); Iowa Code Ann. Sec. 614.1(2A) (fifteen year
statute of repose for products); Neb. Rev. Stat. Ann. Sec. 25-224 (ten
year statute of repose for products); N.C. Gen. Stat. Ann. Sec. 1-
50(a)(6) (six year statute of repose for products); Or. Rev. Stat.
Sec. 30.905 (ten year statute of repose for products); Tenn. Code. Ann.
Sec. 29-28-103 (ten year statute of repose for products); and Tex. Civ.
Prac. & Rem. Code Ann. Sec. 16.012 (fifteen year statute of repose for
products).
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Legislative History.--H.R. 3509 was introduced by
Representative Steve Chabot (R-OH) on July 28, 2005. The
Subcommittee held a legislative hearing on March 14, 2006.
Witnesses who testified included: Elizabeth Sitterly, Esq.,
Legal Counsel, Giddings & Lewis, LLC; Kevin McMahon, Esq.,
Partner, Nelson Mullins Riley & Scarborough, LLP; Professor
Andrew Popper, Washington College of Law, American University;
and James H. Mack, Esq., Vice President of Tax and Economic
Policy, The Association of Manufacturing Technology. The bill
was discharged from the Subcommittee on March 24, 2006. The
Committee marked up H.R. 3509 on March 29, 2006 and July 19,
2006. The legislation was ordered to be reported favorably,
with an amendment, by the Committee on July 19, 2006 by a
recorded vote of 21 to 12. The legislation was not further
considered prior to the end of the 109th Congress.
PRIVACY
H.R. 2840, the ``Federal Agency Protection of Privacy Act of 2005''
Summary.--H.R. 2840, the ``Federal Agency Protection of
Privacy Act of 2005,'' would require agencies to prepare
privacy impact assessments for proposed and final rules that
pertain to the collection, maintenance, use, or disclosure of
personally identifiable information from ten or more
individuals, other than agencies, instrumentalities, or
employees of the Federal government. With limited exception,
such assessments will be made available to the public for
comment. While H.R. 2840 makes no substantive demands on
Federal agencies with respect to privacy, it does require these
agencies to analyze how the rule will impact the privacy
interests of individuals. This requirement is similar to other
analyses that agencies currently conduct, such as those
required by the Regulatory Flexibility Act \19\ and the E-
Government Act of 2002.\20\ Specifically, H.R. 2840 would
require the agency to explain: (1) what personally identifiable
information will be collected; (2) how such information will be
collected, maintained, used, disclosed, and protected; (3)
whether a person to whom the personally identifiable
information pertains is allowed access to such information and
whether such person may correct any inaccuracies; (4) how
information collected for one purpose will be prevented from
being used for another purpose; and (5) the steps the agency
has taken to minimize any significant privacy impact that a
final rule may have. In addition, the bill would have permitted
judicial review of certain final agency actions, and required
agencies to review rules on a periodic basis that have either a
significant privacy impact on individuals or a privacy impact
on a significant number or individuals. The bill included a
limited waiver from certain requirements for national security
reasons and to prevent the disclosure of other sensitive
information.
---------------------------------------------------------------------------
\19\ Pub. L. No. 96-354, 94 Stat. 1165 (1980) (codified at 5 U.S.C.
Sec. Sec. 601 et seq.). The Regulatory Flexibility Act requires an
agency to describe the impact of proposed and final regulations on
small entities (such as small businesses) if the proposed regulation is
expected to have a significant economic impact on a substantial number
of small entities. The agency must prepare an initial regulatory
flexibility analysis (IRFA) and the IRFA, or a summary thereof, must be
published for public comment in the Federal Register together with the
proposed rule. Similar requirements pertain to final rules. The Small
Business Regulatory Enforcement Fairness Act of 1996 subjects the
regulatory flexibility analysis to judicial review. Pub. L. No. 104-
121, Sec. 242, 110 Stat. 857, 865 (1966) (codified at 5 U.S.C.
Sec. 611).
\20\ Pub. L. No. 107-347, Sec. 208, 116 Stat. 2899, 2921 (requiring
a federal agency inter alia to conduct a privacy impact assessment
before developing or procuring an information technology system that
collects, maintains or disseminates information in an identifiable
form).
---------------------------------------------------------------------------
Legislative History.--On June 9, 2005, Representative Steve
Chabot (R-OH) introduced H.R. 2840 with Subcommittee Chairman
Chris Cannon (R-UT) and Representatives Jerrold Nadler (D-NY)
and William Delahunt (D-MA) as original cosponsors. Although no
hearings were held on H.R. 2840 during the 109th Congress, the
Subcommittee had previously held a joint hearing with the
Subcommittee on the Constitution on similar legislation (H.R.
338) during the 108th Congress on July 22, 2003.\21\ Testimony
at that hearing was received from United States Senator Charles
E. Grassley (R-IA); former Representative Bob Barr (R-GA) on
behalf of the American Conservative Union; Laura Murphy,
Director of the American Civil Liberties Union, and James X.
Dempsey, Executive Director of the Center for Democracy &
Technology. On May 17, 2006, the Subcommittee ordered H.R. 2840
to be favorably reported by voice vote. On June 7, 2006, the
Committee ordered the bill to be favorably reported, with an
amendment, by voice vote. On Sept 25, 2006, H.R. 2840 was
placed on the Union Calendar.
---------------------------------------------------------------------------
\21\ Defense of Privacy Act and Privacy in the Hands of the
Government: Joint Hearing on H.R. 338 Before the Subcomm. on Commercial
and Administrative Law and the Subcomm. on the Constitution of the H.
Comm. on the Judiciary, 108th Cong. (2003).
---------------------------------------------------------------------------
STATE TAXATION AFFECTING INTERSTATE COMMERCE
H.R. 1956, the ``Business Activity Tax Simplification Act of 2005''
Summary.--H.R. 1956, the ``Business Activity Tax
Simplification Act of 2006,'' would provide a bright-line
physical presence nexus requirement in order for states to
collect net income taxes or other business activity taxes on
multistate enterprises. H.R. 1956 amends Public Law 86-272,\22\
enacted in 1959, which prohibits states from imposing taxes on
the net income of interstate sellers of tangible personal
property if the only business activity within the state
consists of the solicitation of certain sales orders. H.R. 1956
lists the conditions that a business must meet in order to
establish a physical presence for the purpose of a state
imposing business activity taxes. It also specifies those
conditions that should be disregarded in determining whether a
business has established physical presence within a state. H.R.
1956 would benefit interstate commerce by providing businesses
a measure of jurisdictional certainty.
---------------------------------------------------------------------------
\22\ Pub. L. No. 86-272, 73 Stat. 555 (1959) (codified, as amended,
at 15 U.S.C. Sec. 381 et set. (2004)).
---------------------------------------------------------------------------
Legislative History.--H.R. 1956 was introduced by
Representative Bob Goodlatte (R-VA) on April 28, 2005. The
Subcommittee held a hearing on the measure on September 27,
2005. Witnesses who testified included: Carey Horne, President,
ProHelp Systems, Inc.; Earl Ehrhart, State Representative,
Georgia House, 36th District, National Chairman of the American
Legislative Council; Joan Wagnon, Secretary of Revenue, State
of Kansas, Chair, Multistate Tax Commission; and Lyndon D.
Williams, Tax Counsel, Citigroup Corp. On December 13, 2005,
the Subcommittee marked up H.R. 1956, and ordered it to be
favorably reported, as amended, by voice vote. The Committee
marked up the bill on June 28, 2006, and ordered it to be
favorably reported, as amended, by voice vote. The bill was
reported to the House on July 17, 2006 (H Rept. 109-575).
H.R. 1369, the ``To Prevent Certain Discriminatory Taxation of
Interstate Natural Gas Pipeline Property''
Summary.--H.R. 1369 would prohibit discriminatory taxation
of natural gas pipeline property. The bill describes acts that
unreasonably burden and discriminate against interstate
commerce and which effectively increase the costs of
transporting natural gas throughout the different states. It
would prevent states, political subdivisions and any other
taxing authority in a state from assessing a higher ad valorem
tax on interstate gas pipeline property than that assessed on
other commercial or industrial property. It also grants
jurisdiction to the U.S. district courts to determine claims of
discriminatory state taxation and provide relief.
Natural gas pipelines constitute an interstate
transportation industry similar to that of railroads, trucking,
and air carriers. But while Congress has passed legislation
with respect to discriminatory tax treatment of property
belonging to these other interstate industries, it has not
acted with regard to natural gas pipeline transportation. For
example, Congress passed the Railroad Revitalization and
Regulatory Reform Act of 1976, which, in part, enjoined states
from imposing discriminatory assessments and authorized the
railroad industry to seek injunctive relief in federal court to
eliminate such discriminatory state assessments. Since then,
Congress has passed similar legislation for motor carrier
transportation property and air carrier transportation property
prohibiting discriminatory tax treatment.
Legislative History.--H.R. 1369 was introduced by
Subcommittee Chairman Chris Cannon (R-UT) on March 17, 2005.
The Subcommittee held a hearing on the bill on October 6, 2005.
Witnesses who testified at the hearing included: Mark
Schroeder, Vice President and General Counsel, CenterPoint
Energy Gas Transmission Company; Dr. Veronique de Rugy,
Research Fellow, American Enterprise Institute for Public
Policy Research; Harley Duncan, Executive Director, Federation
of Tax Administrators; and Laurence Garrett, Senior Counsel, El
Paso Corporation, on behalf of The Interstate Natural Gas
Association of America.
On June 15, 2006, the Subcommittee marked up H.R. 1369 and
ordered the bill favorably reported without amendment by voice
vote. The Committee marked up the bill on July 12, 2006 and
ordered it to be favorably reported by voice vote. H.R. 1369
was placed on the Union Calendar on Sept. 14, 2006. The
legislation was not further considered prior to the end of the
109th Congress.
H.R. 4019, ``To Amend Title 4 of the United States Code to Clarify the
Treatment of Self-Employment for Purposes of the Limitation on
State Taxation of Retirement''
Summary.--H.R. 4019 amended Public Law 104-95 (as codified
at 4 U.S.C. Sec. 114) to clarify the limitation on state
taxation of retirement income with respect to workers who were
self-employed. The legislation was intended to ensure that the
retirement income of all retirees, whether they are employees,
partners, or self-employed prior to retirement, is treated in
the same manner.\23\
---------------------------------------------------------------------------
\23\ Pub. L. No. 104-95, 109 Stat. 979 (codified at U.S.C. Sec. 114
(1996)).
---------------------------------------------------------------------------
Public Law 104-95 was enacted in order to prevent pensions
and many other types of retirement income from being taxed both
by the state wherein the retiree resides when he or she
receives payment of the retirement income and by the source
state where the retiree worked prior to retirement. Although
Congress acknowledged that such double taxation of retirement
income would be avoided to the extent that the retiree's state
of residence provides a credit for the income taxes that the
retiree has paid to the source state on the retirement income,
it concluded that such state tax credits are not always
available, particularly if the retiree resides in a state with
no income tax.
H.R. 4019 was intended to clarify that exemptions to
payments made to retired employees apply to both retired
employees and retired partners by specifically including
written arrangements for retired partners. The bill makes clear
that any written plan, program, or arrangement in effect at the
time of retirement that provides for payments to a retired
partner in recognition of prior service may qualify as exempt
from nonresident state income taxation as long as such payments
are made over ten years or more and are made in substantially
equal periodic payments.
H.R. 4019 was intended to make clear Congress's original
intent when it passed section 114, to limit the taxation of
retirement income to the state in which the retiree resides,
whether the retirement payments are made to a retired employee
or a retired partner. H.R. 4019 merely confirmed and continued
this Congressional intent. H.R. 4019 also clarified the
definition of substantially equal periodic payments to permit
plan caps on retiree payments and cost of living adjustments
and specified that the substantially equal periodic payments
test would be satisfied when payments include components from
both qualified and non-qualified plans. These modifications
were intended to clarify existing law rather than substantively
amend it.
Legislative History.--Subcommittee Chairman Chris Cannon
introduced H.R. 4019 on October 7, 2005. The Subcommittee held
a hearing on the bill on December 13, 2005. Witnesses who
testified at the hearing included: former Representative George
W. Gekas (R-PA); Lawrence Portnoy, a retired partner with
PricewaterhouseCoopers LLP; Stanley Arnold, former Commissioner
of the Department of Revenue for the State of New Hampshire;
and Harley Duncan, Executive Director, Federation of Tax
Administrators. Following the hearing, the Subcommittee marked
up the bill and ordered it favorably reported by voice vote
without amendment.
On June 7, 2006, the Committee marked up H.R. 4019 and
reported it favorably by voice vote (H. Rept. 109-542). The
House passed the legislation by voice vote, without amendment,
on July 17, 2006. On July 24, 2006, the Senate unanimously
passed H.R. 4019 without amendment. H.R. 4019 was signed into
law by President George W. Bush on August 3, 2006 (Pub. L. No.
109-264).
LEGAL SERVICES CORPORATION
H.R. 6101, ``Legal Services Corporation Improvement Act''
Summary.--H.R. 6101, the ``Legal Services Corporation
Improvement Act,'' would strengthen the independence of the
Inspector General (IG) at the Legal Services Corporation (LSC).
Specifically, the bill would amend the Legal Services Act to
require nine of 11 members of the LSC Board of Directors to
concur in the discharge of the Corporation's IG.
There would appear to be an inherent conflict between any
IG and the agency for which he or she serves. The IG is charged
with oversight of the functioning of the agency and must, as a
matter of cause, conduct investigations of the heads of the
agency--the same people to whom he or she reports and must
maintain a working relationship.
Other agencies have apparently experienced similar issues
with their IGs. To remedy the conflict in two organizations,
the United States Postal Service and the United States Capitol
Police, Congress created higher bars for dismissal than those
proposed in H.R. 6101 for the IG at LSC. The Postal
Reorganization Act requires agreement of seven out of nine
members of the Board of Governors for dismissal, while the U.S.
Capitol Police IG may be removed from office prior to the
expiration of his term only by the unanimous vote of all of the
voting members of the Capitol Police Board. H.R. 6101 is
modeled after the removal processes for these two
organizations.
Legislative History.--On July 28, 2006, Subcommittee
Chairman Cannon introduced H.R. 5974, a bill to amend the
Inspector General Act of 1978 and the Legal Services
Corporation Act to provide appropriate removal procedures for
the Inspector General of the Legal Services Corporation, and
for other purposes. Thereafter, Chairman Cannon introduced a
substitute bill, H.R. 6101, the ``Legal Services Corporation
Improvement Act,'' on September 19, 2006.
On September 26, 2006, the Subcommittee held a hearing on
H.R. 6101. Witnesses at the hearing included: Richard ``Kirt''
West, Inspector General, Legal Services Corporation; David
Williams, Inspector General, United States Postal Service; and
Frank Strickland, Chairman of the Board, Legal Services
Corporation. The legislation was not further considered prior
to the end of the 109th Congress.
OVERSIGHT ACTIVITIES
Oversight hearing list
------------------------------------------------------------------------
Date/Serial No. Hearing title
------------------------------------------------------------------------
May 24, 2005/ 109-27................... Joint Oversight Hearing on
``Economic Development and the
Dormant Commerce Clause: the
Lessons of Cuno v. Daimler
Chrysler and Its Effect on
State Taxation Affecting
Interstate Commerce''.
June 7, 2005/ 109-42................... Mutual Fund Trading Abuses.
June 28, 2005/ 109-145................. Legal Services Corporation: A
review of Leasing Choices and
Landlord Relations.
July 27, 2005/ 109-55.................. Implementation of the
Bankruptcy Abuse Prevention
Act of 2005.
Nov. 1, 2005/ 109-71................... Administrative Law, Process and
Procedure Project.
March 30, 2006/ 109-97................. 10th Anniversary of the
Congressional Review Act.
April 4, 2006/ 109-98.................. Personal Information Acquired
by the Government from
Information Resellers: Is
There Need for Improvement?
April 26, 2006/ 109-132................ Reauthorization of the
Department of Justice:
Executive Office for United
States Attorneys, Civil
Division, Environment and
Natural Resources Division,
Executive Office for United
States Trustees, and Office of
the Solicitor General.
May 17, 2006/ 109-155.................. Privacy in the Hands of the
Government: The Privacy
Officer for the Department of
Homeland Security and the
Privacy Officer for the
Department of Justice.
June 13, 2006/ 109-120................. State Taxation of Interstate
Telecommunications Services.
July 25, 2006/ 109-133................. The 60th Anniversary of the
Administrative Procedure Act:
Where Do We Go From Here?
Nov. 14, 2006/109-152.................. The Administrative Law, Process
and Procedure Project for the
21st Century
Dec. 7, 2006........................... The Arbitration Process of the
National Football League
Players Association
------------------------------------------------------------------------
Joint Oversight Hearing on ``Economic Development and the Dormant
Commerce Clause: the lessons of Cuno v. Daimler Chrysler and
its effect on state taxation affecting interstate commerce''
Summary.--On October 19, 2004, the United States Court of
Appeals for the Sixth Circuit issued an opinion in Cuno v.
DaimlerChrysler, Inc. holding that portions of Ohio's tax code
were unconstitutional on the ground that they violated the
Dormant Commerce Clause.\24\ At issue was Ohio's franchise tax
credit for companies that chose to ``[purchase] new
manufacturing machinery and equipment during the qualifying
period, provided that the new manufacturing machinery and
equipment are installed in [Ohio].'' \25\ Under the terms of
the tax credit and a related property tax exemption,\26\
DaimlerChrysler was to obtain approximately $280 million in tax
relief over ten years for investing approximately $1.2 billion
in a new vehicle assembly plant that would generate
approximately 5,000 new jobs in Toledo, Ohio.\27\
---------------------------------------------------------------------------
\24\ Cuno v. DaimlerChrysler, Inc., 386 F.3d 738 (6th Cir. 2004),
vacated by and remanded by, 126 S.Ct. 1854 (2006) (While not actually a
provision of the Constitution, the Dormant Commerce Clause is a
doctrine of Congressional power inferred by the Supreme Court that
restricts the ability of States to legislate in certain areas involving
interstate commerce.)
\25\ Ohio Rev. Code Ann. Sec. 5733.33(B)(1).
\26\ Cuno, 386 F.3d at 748-49 (The property tax exemption was
upheld against challenges under the Dormant Commerce Clause and the
Equal Protection clause of the Ohio Constitution.)
\27\ Id. at 741; see also Gregory Castanias, National Movement
Against Economic-Development Incentives Makes Inroads in the Sixth
Circuit and Raises Questions About Similar Incentives Elsewhere, Mondaq
Bus. Briefing, Feb. 7, 2005, available at http://www.mondaq.com/
article.asp?articleid=30851&searchresults=1.
---------------------------------------------------------------------------
Apart from the question of the constitutionality of the
Ohio investment tax credit is the issue of whether such credits
make sound public policy. Approximately forty states have
similar investment tax credits.\28\ The reasons that a state
might offer such a credit are many, but underlying them all is
the notion that such credits make it attractive for businesses
to invest in their states, thus creating higher tax revenue for
the state in the form of property and payroll taxes. From a
business perspective, the existence of tax credits are just one
of several factors that influence a company's decision to
expand or move its operations from one state or locale to
another. Other factors include the cost of labor, the cost of
land, the overall regulatory and tax environment, access to
resources, costs of shipping, as well as historical factors
such as a business's ties to a particular community. And while
a tax incentive package usually represents a small amount of
money relative to the company's proposed investment in a
community,\29\ it can help provide a rationale for staying in a
particular location that otherwise would make less economic
sense for the company.
---------------------------------------------------------------------------
\28\ Castanias, supra note 28.
\29\ For example, DaimlerChrysler was to receive $280 million in
tax relief over ten years for investing approximately $1.2 billion in a
new vehicle assembly plant that would generate approximately 5,000 new
jobs in Toledo, Ohio.
---------------------------------------------------------------------------
On May 24, 2005 the Subcommittee, together with the
Subcommittee on the Constitution, held a joint oversight
hearing on ``Economic Development and the Dormant Commerce
Clause: the Lessons of Cuno v. DaimlerChrysler and Its Effect
on State Taxation Affecting Interstate Commerce.'' Witnesses
who testified at the hearing included: Lieutenant Governor
Bruce Johnson of the State of Ohio; Michele R. Kuhrt, Director
of Taxes and Financial Administration for Lincoln Electric;
Professor Walter Hellerstein from University of Georgia School
of Law; and Professor Edward A. Zelinsky from Benjamin N.
Cardozo School of Law.
The hearing provided an opportunity for the Subcommittees
to explore the scope of the Dormant Commerce Clause vis-a-vis
state tax credits, and the implications of the Sixth Circuit's
decision in Cuno v. DaimlerChrysler on that body of law. The
hearing also addressed Congress' ability to pass legislation
that renders such State statutory schemes lawful and examined
the impact these tax credits have on promoting business
development in economically depressed areas.
Mutual fund trading abuses
Summary.--In the summer of 2003, various trading abuses
committed by many well-known mutual fund companies began to
surface. As a result of numerous regulatory investigations
commenced thereafter, the mutual fund industry suffered
``through its most serious crisis of faith in more than six
decades.'' \30\ These abuses included, among other activities,
market timing, late trading, and exorbitant fund fees. Market
timing can constitute illegal conduct if, for example, it takes
place as a result of undisclosed agreements between investment
advisers (firms that may manage mutual fund companies) and
favored customers (such as hedge funds) in contravention of
stated fund trading limits. Frequent trading can harm mutual
fund shareholders because it lowers fund returns and increases
transaction costs. According to one estimate, market timing
abuses may have resulted in $5 billion in annual losses.\31\
Late trading involves the practice of trading shares after the
markets have closed so that the trader can take advantage of
information that becomes available after the closing.\32\
---------------------------------------------------------------------------
\30\ Patrick McGeehan, A Scandal, but Business Booms, N.Y. Times,
Jan. 11, 2004, at 25.
\31\ U.S. Government Accountability Office, Report to Congressional
Requesters: Mutual Trading Abuses--Lessons Can Be Learned from SEC Not
Having Detected Violations at an Earlier Stage, GAO-05-313, at 4-5
(Apr. 2005).
\32\ Id. at 10.
---------------------------------------------------------------------------
Mutual fund companies and other participants implicated in
the scandal included Canary Capital, Janus Capital Group, Bank
of America, Alliance Capital Management, Prudential Securities,
Millennium Partners, Fred Alger Management, Putnam Investments,
PBHG Funds, Massachusetts Financial Services, Security Trust,
Franklin Resources, and Invesco Funds Group.\33\
---------------------------------------------------------------------------
\33\ See, e.g., Jenny Anderson, Franklin Hit with Trading Charges,
N.Y. Post, Feb. 5, 2004, at 37; Patrick McGeehan, A Scandal, but
Business Booms, N.Y. Times, Jan. 11, 2004, at 28; Riva D. Atlas, Mutual
Fund Ex-Executive Is Sentenced to Prison, N.Y. Times, Dec. 18, 2003, at
C1 (reporting that a senior executive at Fred Alger Management received
a prison sentence for tampering with evidence sought by the New York
Attorney General in connection with the investigation of improper
trading in mutual funds); Diana B. Henriques, Fund Compliance Plans
Ignored Trade Timing, N.Y. Times, Dec. 11, 2003, at C1 (reporting on
allegations that a small group of Prudential brokers ``were placing
hundreds of short-term trades in defiance of the funds' rules);
Associated Press, Guilty Plea in Case at Security Trust, N.Y. Times,
Dec. 10, 2003'', at C63; Landon Thomas Jr., Memo Shows MFS Funds Let
Favored Clients Trade When Others Couldn't, N.Y. Times, Dec. 9, 2003,
at C1; Bloomberg News, S.E.C. Charges Mutuals.com and 3 of Its Leaders
with Fraud, N.Y. Times, Dec. 5, 2003, at C6; Riva Atlas & David
Barboza, Funds Scandal Hits Invesco and Founder of Strong, N.Y. Times,
Dec. 3, 2003, at C1 (reporting on Richard Strong's resignation of
Invesco Funds Group, in light of the ``rapidly expanding investigation
of improper trading'').
---------------------------------------------------------------------------
Although there was extensive awareness of illegal market
timing for years, the SEC failed to act. Perhaps even more
problematic was the fact that many of the initial
investigations and prosecutorial actions were commenced by
state officials rather than the SEC. On September 3, 2003, New
York Attorney General Elliot Spitzer announced that Canary
Capital, a hedge fund, agreed to pay $40 million in fines and
restitution relating to improper trading of mutual funds,
without admitting any wrongdoing.\34\ This would be the first
of many regulatory enforcement efforts undertaken by state
officials.
---------------------------------------------------------------------------
\34\ Patrick McGeehan, A Scandal, but Business Booms, N.Y. Times,
Jan. 11, 2004, at 25.
---------------------------------------------------------------------------
In February 2004, Chairman Sensenbrenner and Ranking Member
Conyers asked the GAO to undertake a comprehensive review of
the SEC's apparent failure to proactively detect and prevent
illegal activities in the mutual fund industry.\35\ In
addition, the GAO was requested to focus on the efforts of the
NASD (National Association of Securities Dealers) to detect
fraud in the various disclosure documents that are required to
be filed with it by mutual fund companies.\36\
---------------------------------------------------------------------------
\35\ Letters from F. James Sensenbrenner, Jr., Chairman of the
House Judiciary Committee, to David M. Walker, Comptroller General of
the United States (Feb. 3, 2004); Letter from John Conyers, Jr.,
Ranking Member of the House Judiciary Committee, to David M. Walker,
Comptroller General of the United States (Feb. 6, 2004) (on file with
the Subcommittee).
\36\ Id.
---------------------------------------------------------------------------
On June 7, 2005, the Subcommittee held an oversight hearing
on mutual fund trading abuses and the results of the GAO's
study of these abuses. Witnesses at the hearing included:
Richard J. Hillman, Director, Financial Markets and Community
Investment, GAO; Lori A. Richards, Director, Office of
Compliance Inspections and Examinations, U.S. Securities and
Exchange Commission (SEC); the Honorable William Francis
Galvin, Secretary of the Commonwealth of Massachusetts; and
Professor Eric W. Zitzewitz of Stanford University Graduate
School of Business. The hearing provided a forum for the GAO to
report on the results of two investigations it conducted into
the failure of the SEC to uncover billions of dollars of mutual
fund trading fraud abuses.
Legal Services Corporation: A review of leasing choices and landlord
relations
Summary.--In 1998, the Legal Services Corporation (LSC)
began searching for a permanent location. Members of the LSC
Board created a separate organization known as the Friends of
Legal Services Corporation (FoLSC), which would attempt to
purchase a building for LSC to avoid certain budgetary scoring
requirements of the Office of Management and Budget (OMB).
FoLSC received a grant of $4 million from the Bill and Melinda
Gates Foundation to aid in the project. On July 2, 2002, FoLSC
completed the purchase of 3333 K Street, Washington, D.C., a
five-story commercial building with 60,000 square feet. LSC
agreed to enter into a ten-year lease agreement to occupy
45,000 square feet of this property, for $38 per square foot.
During the search and acquisition of the building, many of the
original aims of the project seem to have been compromised,
with detrimental results to the LSC.
The lease entered into by LSC would appear to be
unacceptable by normal business entities in a commercial
context. Pursuant to concerns raised by the Subcommittee as
well as by LSC staff and management, LSC Inspector General Kirt
West initiated an investigation into the financial implications
of the lease that was entered into between LSC and FoLSC. Based
on his investigation, the Inspector General found that LSC was
paying significantly more than the market rate for the
leasehold. Depending on a yet to be determined variable as to
whether the build-out allowance would be fully utilized, his
report concluded that LSC was paying between $1.23 million to
$1.89 million in rent above what the market would bear for the
square footage occupied over the next 10 years.\37\ The lease
contained no renewal option, nor any provision for eventual
ownership of the building to transfer to LSC.\38\
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\37\ Report on the Financial Implications of the 3333 K Street
Lease by the Inspector General to the LSC Board of Directors (Apr. 22,
2005). The Report utilized two independent appraisals contracted by the
Inspector General. Although a $2 million build-out allowance was
incorporated into the lease (albeit atypical of commercial lease
agreements), there was no provision for any unused funds to be
transferred back to LSC, the tenant.
\38\ Id. at 2.
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The Subcommittee held an oversight hearing on LSC on June
28, 2005 to examine the fiscal soundness of a lease entered
into by LSC, potentially false representations made by its
landlord, FoLSC, and the relationship between LSC and its
landlord. Witnesses at the hearing included: Thomas Smegal,
Chairman of the Board of FoLSC; Frank B. Strickland, Chairman
of the Board of Directors of LSC; and R. Kirt West, LSC
Inspector General.
Implementation of the Bankruptcy Abuse Prevention Act of 2005
Summary.--The Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005 (the Act) \39\ was signed into law by
President George W. Bush on April 20, 2005. Pursuant to section
1501, most of the Act's provisions become effective on October
17, 2005.
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\39\ Pub. L. No. 109-8, 119 Stat. 23 (2005).
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The Act represents one of the most comprehensive overhauls
of the Bankruptcy Code in more than 25 years, particularly with
respect to its consumer bankruptcy reforms. These consumer
bankruptcy reforms include, for example, the establishment of a
means test mechanism to determine a debtor's ability to repay
debts and the requirement that consumer debtors receive credit
counseling prior to filing for bankruptcy relief.
The Act directs the Executive Office for United States
Trustees (EOUST), which is a component of the Justice
Department, and the Judicial Conference of the United States to
perform various tasks to facilitate the Act's implementation.
These responsibilities include the issuance of rules, forms,
guidelines, and procedures.
On July 27, 2005, the Subcommittee held a hearing on the
implementation of the Act. The hearing provided an opportunity
for the Subcommittee to examine the efforts EOUST and the
Judicial Conference had made with respect to fulfilling their
enhanced responsibilities under the Act. Witnesses at the
hearing included: Clifford J. White III, EOUST Acting Director;
Honorable A. Thomas Small, United States Bankruptcy Judge for
the Eastern District of North Carolina, on behalf of Judicial
Conference of the United States; Travis B. Plunkett, on behalf
of the Consumer Federation of America, National Consumer Law
Center, and U.S. Public Interest Research Group; and George
Wallace, who appeared on behalf of the Coalition for the
Implementation of Bankruptcy Reform.
Administrative Law, Process and Procedure Project
Summary.--In light of the fact that the Administrative
Procedure Act (APA) \40\ was enacted more than 60 years ago,
concerns have been presented as to whether the APA is
sufficiently adaptable to accommodate current technological
advances and policy developments (e.g., privacy versus law
enforcement, globalization of standards, interagency
redundancy). Other problematic trends include the absence of
transparency at certain stages of the rulemaking process, the
increasing incidence of agencies publishing final rules without
having these rules first promulgated on a proposed basis, the
apparent stultification of the rulemaking process, and the need
for more consistent enforcement by agencies.\41\ Potentially
positive developments include increased opportunities for
fostering public comment through e-rulemaking and agencies' use
of the Internet to promote greater compliance by the public and
private sectors. Additional important issues concern Congress's
role in its oversight of the rulemaking process and whether
current laws, such as the Congressional Review Act \42\ and the
Regulatory Flexibility Act,\43\ have resolved the problems they
were intended to address.
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\40\ 5 U.S.C. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372,
7521 (2002).
\41\ See, e.g., Regulatory Reform: Prior Reviews of Federal
Regulatory Process Initiatives Reveal Opportunities for Improvements,
U.S. Government Accountability Office, GAO-05-939 (2005).
\42\ 5 U.S.C. Sec. Sec. 801-08 (2002).
\43\ 5 U.S.C. Sec. Sec. 601-12 (2002).
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In anticipation of funds being appropriated for the
Administrative Conference of the United States (ACUS) during
the 109th Congress, the Subcommittee coordinated the
Administrative Law, Process and Procedure Project. As
authorized by Chairman F. James Sensenbrenner, Jr., the Project
consists of a comprehensive study of the state of
administrative law, process and procedure in our nation. A
description of the Project was included in the Oversight Plan
for the 109th Congress approved by the Committee on the
Judiciary on January 26, 2005.\44\ The Project will culminate
with a detailed report highlighting recommendations for
legislative proposals and suggested areas for further research
and analysis to be considered by ACUS. The Subcommittee is
being assisted by the Congressional Research Service (CRS) in
the conduct of the Project.\45\
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\44\ Oversight Plan for the 109th Congress, Committee on the
Judiciary, at 5 (Jan. 26, 2005), available at http://
judiciary.house.gov/media/pdfs/printers/109th/
109th%20Oversight%20Plan.pdf.
\45\ Chairman Sensenbrenner and Ranking Member Conyers requested
CRS to have Mr. Rosenberg provide legal guidance, analysis and research
to the Subcommittee staff in identifying significant administrative
process issues for the project as well as assistance in the
organization of the necessary outreach support in the academic and
professional communities.
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The Project's objective is to conduct a nonpartisan,
academically credible analysis of administrative law, process
and procedure. The Project will focus on process, not policy
concerns. General areas of study are anticipated to include:
(1) public participation in the rulemaking process; (2)
congressional review of rules; (3) presidential review of
agency rulemaking; (4) judicial review of rulemaking; (5) the
agency adjudicatory process; (6) the utility of regulatory
analysis and accountability requirements; and (7) the role of
science in the regulatory process.
On November 1, 2005, the Subcommittee held a hearing on the
Project. The hearing provided an opportunity for the
Subcommittee to be briefed by Morton Rosenberg, Esq.,
Specialist in American Public Law at the American Law Division
of CRS, regarding the status of the Project. It also served as
a forum for J. Christopher Mihm, Director of Strategic Issues
at GAO, to share his office's expertise regarding its analysis
of subject matters of relevance to the Project and
opportunities for collaboration. In addition, Professor Jeffrey
S. Lubbers, Professor-Fellow in Law and Government Program,
Washington College of Law, American University, explained the
role that ACUS could play in implementing the Project's
recommendations for further review and analysis. Professor Jody
Freeman of Harvard Law School provided a status report on her
ongoing empirical study of judicial review of agency
regulations.
10th Anniversary of the Congressional Review Act
Summary.--Ten years ago, in 1996, Congress passed the
Congressional Review Act (``CRA''). The Act was a result of a
desire for more active congressional control over a rapidly
growing body of administrative rules.\46\ The CRA established a
mechanism for Congress to review and disapprove Federal agency
rules by using an expedited legislative process. Prior to the
CRA, Congress had historically employed various means to assert
its authority over agencies.\47\ Recognizing that Congress must
conform to the constitutional bicameral requirement and the
Presentment clause, the CRA requires that rules be disapproved
by a joint resolution of both houses, then presentment to the
President for signature. It thus follows the approach taken in
the Rules Enabling Act (28 U.S.C. Sec. 2072 et seq.), under
which the Supreme Court has for many years promulgated rules of
practice and procedure and rules of evidence for the Federal
courts subject to a review that has often been exercised by the
Congress.\48\
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\46\ Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), Pub. L. No. 104-121, Subtitle E, 110 Stat. 857-874.
\47\ A popular method, particularly from the early 1970s through
1983 was the ``legislative veto'' under which an enabling statute
sometimes provided the rules promulgated under it were subjected to
reversal if one or both of the Houses passed a resolution repealing the
Executive Branch's action. In 1983, however, the Supreme Court struck
down the legislative vote in INS v. Chadha, 462 U.S. 919, on the
grounds that when Congress acted ``legislatively'' it had to conform to
the dictates of the bicameral requirement and Presentment Clause. See
U.S. Const. art. I, Sec. 7, cl. 2. Because the legislative veto was a
legislative act that did not adhere to these provisions, it violated
the Constitutional design for the separation of powers.
\48\ Despite passage of the Congressional Review Act, some pressure
continues for even more congressional responsibility in the oversight
of agency rulemaking, as evidenced from testimony received by the
Subcommittee during a hearing on the role of Congress in monitoring
administrative rulemaking during the 104th Congress. Role of Congress
in Monitoring Administrative Rulemaking: Hearing on H.R. 47, H.R. 2727,
and H.R. 2990 Before the Subcomm. On Commercial and Administrative Law
of the House Comm. On the Judiciary, 104th Cong. 2nd Sess. 104-93
(1996). The hearing considered three bills, which provided in varying
degree for congressional approval of administrative rules before they
could become formally effective.
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Since the enactment of the CRA, over 41,828 major and non-
major rules have been reported by Administrative agencies and
have became effective.\49\ To date, a total of 37 joint
resolutions of disapproval have been introduced in both houses
of Congress relating to 28 rules.\50\
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\49\ General Accounting Office, Reports on Federal Agency Major
Rules, available at http://www.gao.gov/decisions/majrule/majrule.htm.
\50\ This Congress, four joint resolutions have been introduced,
two in the House and two in the Senate. H.J. Res. 23 introduced by Rep.
Herseth (D-SD) and S.J. Res. 4, introduced by Sen. Conrad (D-ND) to
disapprove a Department of Agriculture rule that establishes minimal
risk zones for introduction of mad cow disease. H.J. Res. 56,
introduced by Rep. Meehan (D-MA) and S.J. Res. 20, introduced by Sen.
Leahy (D-VT) to disapprove an EPA rule regarding the removal of coal
and oil-fired generating units from a list of major sources of
hazardous pollutants.
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Over the ten years, only once has the CRA been used to
disapprove a rule.\51\ It has become apparent that the reason
this one rule was disapproved was more due to a convergence of
special circumstances that are unlikely to happen consistently,
than as an example of how the CRA can be effectively used to
disapprove rules.\52\
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\51\ S.J. Res. 16, 107th Cong. (2001)(enacted as Pub. L. No 107-52
(2001).
\52\ The OSHA ergonomic standards were controversial from the first
publication in 1993 of the initial proposal for rulemaking. There was
Congressional opposition to the standards as well, which led to riders
prohibiting OSHA from promulgating proposed or final ergonomic rules
during fiscal years 1995, 1996 and 1998. OSHA issued its final standard
in 2000 after Congress was unable to pass another rider in that year's
appropriations. Shortly after the rule was issued and became effective,
control of the White House changed parties. Therefore, there was
control of both Houses of Congress and the Presidency by the same
party. Longstanding opposition of the rule by those in control of
Congress and a President who was willing to seek the disapproval of a
rule enacted at the end of the term of a previous administration.
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Congress has not used the CRA to disapprove a rule since
2001, though it has introduced joint resolutions regarding
different agency rulemakings. A number of times, joint
resolutions have been introduced in an effort to pressure the
agency involved to modify or withdraw the rule.\53\ This shows
another effect of the CRA even when a joint resolution is not
passed.
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\53\ The disapproval mechanism was utilized by Representative
Wicker (R-MS) to affect a compromise with OSHA regarding the rule
setting exposure limits on methylene chloride by introducting H.J. Res.
67, 105th Cong. (1997), disapproving the OSHA rule. The introduction of
the resolution encouraged OSHA to negotiate with Representative Wicker,
who was able to include a provision on the FY 1998 Labor, HHS and
Education appropriations requiring OSHA to provide on-site assistance
for companies to help comply with the new rules.
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On March 30, 2006, the Subcommittee held an oversight
hearing recognizing the 10th anniversary of the signing of the
Congressional Review Act. Witnesses at the hearing included:
John V. Sullivan, Parliamentarian of the United States House of
Representatives, only the second time in history that a sitting
parliamentarian has testified in front of a House committee.
The other witnesses were J. Christopher Mihm, Managing Director
for Strategic Issues at the U.S. General Accounting Office;
Morton Rosenberg, Specialist in American Public Law at the
Congressional Research Service; and Todd Gaziano, Director of
the Center for Legal & Judicial Studies at The Heritage
Foundation. The hearing provided an opportunity to discuss how
the CRA has been used over the ten years since its enactment,
the effectiveness as a tool in congressional oversight, and the
current reach of the CRA in the rulemaking process.
Personal information acquired by the Government from information
resellers: Is there need for improvement?
Summary.--In 2005, the personal financial records of more
than 163,000 consumers in ChoicePoint's database were
compromised.\54\ As a result of that data breach, approximately
800 cases of identity theft occurred.\55\ LexisNexis, another
information reseller, also experienced a major data breach in
2005 that affected approximately 310,000 individuals.\56\
According to an information security expert, ``a small but
growing market for the type of raw consumer information that
has been pilfered from ChoicePoint, LexisNexis and other
general data aggregators'' was developing.\57\
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\54\ Press Release, Federal Trade Commission, ChoicePoint Settles
Data Security Breach Charges; to Pay $10 Million in Civil Penalties, $5
Million for Consumer Redress, at 1 (Jan. 26, 2006). According to
ChoicePoint, the private information of Americans in ``all 50 states
may have been affected by the breach of the company's credentialing
process,'' including 830 residents of Wisconsin. Harry R. Weber,
Identity Theft Scam Far-Reaching; People in All States Possibly
Affected, with 830 in Wisconsin, Milwaukee Journal Sentinel Online,
Feb. 21, 2005, at http://www.jsonline.com/bym/news/feb05/303661.asp.
\55\ Press Release, Federal Trade Commission, ChoicePoint Settles
Data Security Breach Charges; to Pay $10 Million in Civil Penalties, $5
Million for Consumer Redress, at 1 (Jan. 26, 2006).
\56\ See Brian Krebs, Computers Seized in Data-Theft Probe,
Washingtonpost.com, May 19, 2005, at (reporting that the ``310,000
personal records had been accessed over a series of weeks''); Jonathan
Drim, LexisNexis Data Breach Bigger Than Estimated, 310,000 Consumers
May Be Affected, Firm Says, Wash. Post, Apr. 13, 2005, at E1.
\57\ Tom Zeller, Jr., Black Market in Credit Card Thrives on Web,
N.Y. Times, June 21, 2005, at A1.
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In addition to the security of personal information data
that Federal agencies acquire from information resellers and
others, a related concern pertains to the accuracy of such
information, especially when it is acquired from the private
sector. In the absence of data quality, an American may be
mistakenly denied a job, subjected to additional screening at
an airport, or, even worse, erroneously placed on a criminal or
terrorist watch list.
Reacting to these problematic events and concerns, House
Judiciary Committee Chairman F. James Sensenbrenner, Jr.,
Ranking Member John Conyers, Jr., Constitution Subcommittee
Chairman Steve Chabot, and Subcommittee Ranking Member Jerrold
Nadler requested the GAO to ``investigate issues arising from
the Federal government's reliance on and contributions to
commercially available databases to provide information for use
by law enforcement and in other important domestic functions.''
\58\ In response to this request and similar requests received
from other Members of Congress and Committees,\59\ GAO prepared
a comprehensive draft report with recommendations for
legislative action.
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\58\ Letter from F. James Sensenbrenner, Jr., Chairman, Committee
on the Judiciary, U.S. House of Representatives, et al. to David M.
Walker, Comptroller General of the United States, U.S. Government
Accountability Office, at 1 (Mar. 9, 2005) (on file with the Commercial
and Admin. Law and Constitution Subcommittees).
\59\ Joining Senator Bill Nelson (D-FL) as requesters were three
members of the House Committee on Homeland Security: Ranking Member
Bennie G. Thompson (D-MS), Intelligence, Information Sharing, and
Terrorism Assessment Subcommittee Ranking Member Zoe Lofgren (D-CA),
and Economic Security, Infrastructure Protection, and Cybersecurity
Subcommittee Ranking Member Loretta Sanchez (D-CA). U.S. Government
Accountability Office, Draft Report: Privacy-Opportunities Exist for
Agencies and Resellers to More Fully Adhere to Key Principles, GAO-06-
421, at 72-73 (Apr. 2006).
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The Subcommittee, together with the Subcommittee on the
Constitution, held a joint oversight hearing on ``Personal
Information Acquired by the Government from Information
Resellers: Is There Need for Improvement?'' on April 4, 2006.
Witnesses at the hearing included: Linda D. Koontz, Director
for Information Management Issues, GAO; Maureen Cooney, Acting
Chief Privacy Officer, U.S. Department of Homeland Security;
Professor Peter P. Swire from the Moritz College of Law of the
Ohio State University; and Stuart K. Pratt, President and Chief
Executive Officer of the Consumer Data Industry Association.
The hearing provided an opportunity for the Subcommittees to
have GAO present its findings and recommendations as well as
allow representatives from the public and private sector to
comment on the report.
Reauthorization of the Department of Justice: Executive Office for
United States Attorneys, Civil Division, Environment and
Natural Resources Division, Executive Office for United States
Trustees, and Office of the Solicitor General
Summary.--The Subcommittee has oversight jurisdiction over
five components of the Justice Department (DOJ): Executive
Office for United States Attorneys, Civil Division, Environment
and Natural Resources Division, Executive Office for United
States Trustees, and Office of the Solicitor General.
The United States Attorneys serve as the nation's principal
litigators under the direction of the Attorney General. They
are stationed throughout the United States, Puerto Rico, the
Virgin Islands, Guam, and the Northern Mariana Islands. United
States Attorneys are appointed by, and serve at the discretion
of, the President of the United States, with advice and consent
of the United States Senate. Each United States Attorney is the
chief Federal law enforcement officer of the United States
within his or her particular jurisdiction.
One of six litigating divisions within DOJ, the Civil
Division represents the United States, its departments and
agencies, Members of Congress, Cabinet officers, the Federal
judiciary, other Federal employees, and the people of the
United States. The Civil Division is comprised of seven
branches: Commercial Litigation, Federal Programs, Torts,
Office of Immigration Litigation, Office of Consumer
Litigation, Office of Management Programs, and Appellate Staff.
The Division litigates cases in Federal, state, and foreign
courts.
During the first 50 years since its establishment in 1909,
the primary focus of the Environment and Natural Resource
Division was litigating Federal lands, water, and Indian
disputes. As the nation grew and developed, the Division's
areas of responsibility expanded to include litigation
concerning the protection, use, and development of national
natural resources and public lands, wildlife protection, Indian
rights and claims, cleanup of national hazardous waste sites,
the acquisition of private property for federal use, and
defense of environmental challenges to government programs and
activities. The Division is composed of the following sections:
Environmental Crimes; Environmental Enforcement; Environmental
Defense; Natural Resources; Wildlife and Marine Resources;
General Litigation; Indian Resources; Land Acquisition; Law &
Policy; and Appellate.
The United States Trustee Program is responsible for
overseeing the administration of bankruptcy cases and private
trustees. The Program is overseen by the Executive Office for
United States Trustees, which provides policy and management
direction to United States Trustees. The Program operates
through a system of 21 regions. Specific responsibilities of
the United States Trustees include appointing and supervising
private trustees who administer Chapter 7, 12, and 13
bankruptcy estates; taking legal action to enforce the
requirements of the Bankruptcy Code and to ferret out fraud and
abuse; referring matters for investigation and criminal
prosecution when appropriate; ensuring that bankruptcy estates
are administered promptly and efficiently, and that
professional fees are reasonable; appointing and convening
creditors' committees in Chapter 11 business reorganization
cases; and reviewing disclosure statements and retention
applications for professional persons retained to represent
certain interested parties in bankruptcy cases.
The major function of the Office of the Solicitor General
(OSG) is to supervise and conduct government litigation in the
United States Supreme Court. Virtually all such litigation is
channeled through the OSG and is actively conducted by the
Office. The United States is typically involved in
approximately two-thirds of cases that the United States
Supreme Court decides on the merits each year. The OSG
determines the cases in which Supreme Court review will be
sought by the government and the positions the government will
take before the Court. The OSG's staff attorneys participate in
preparing petitions, briefs, and other papers filed by the
government in its Supreme Court litigation. Those cases not
argued by the Solicitor General personally are assigned either
to an attorney in the Office or to another government attorney.
Another function of the OSG is to review all cases decided
adversely to the government in the lower courts to determine
whether they should be appealed and, if so, what position
should be taken. The Solicitor General also determines whether
the government will participate as an amicus curiae, or
intervene, in cases in any appellate court.
The Subcommittee conducts an oversight hearing on the DOJ
components within its jurisdiction generally on an annual
basis. On April 26, 2006, the Subcommittee conducted a hearing
on these components. The hearing provided an opportunity for
the Subcommittee to consider issues pertinent to proposed
legislation reauthorizing the DOJ and the Administration's
pending Fiscal Year 2007 budgetary request. Witnesses appearing
on behalf of DOJ at the hearing included: Michael Battle,
Director, Executive Office for United States Attorneys; Peter
D. Keisler, Assistant Attorney General, Civil Division; Matthew
J. McKeown, Principal Deputy Assistant Attorney General for the
Environment and Natural Resources Division on behalf of
Assistant Attorney General Sue Ellen Wooldridge; and Clifford
J. White, III, Acting Director, Executive Office for United
States Trustees.
Privacy in the hands of the Government: The Privacy Officer for the
Department of Homeland Security and the Privacy Officer for the
Department of Justice
Summary.--The Privacy Act of 1974 regulates how Federal
agencies may use personal information they collect from
individuals.\60\ These agencies are generally prohibited from
disclosing personally identifiable information to other Federal
or state agencies or to any other person,\61\ subject to
certain specified exceptions.\62\ An agency that releases such
information in violation of the Privacy Act may be sued for
damages sustained by an individual as a result of such
violation, under certain circumstances.\63\ In addition, the
Privacy Act grants individuals the right to have agency records
maintained on themselves corrected upon a showing that such
records are inaccurate, irrelevant, out-of-date, or
incomplete.\64\
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\60\ 5 U.S.C. Sec. 552a (2002). According to one treatise, the
Privacy Act ``gives individuals greater control over gathering,
dissemination, and ensuring accuracy of information collected about
themselves by agencies'' and that its ``main purpose'' is to ``forbid
disclosure unless it is required by the Freedom of Information Act.''
Admin. Conf. of the U.S., Fed. Admin. Proc. Sourcebook--Statutes and
Related Materials 863 (2d ed. 1992).
\61\ 5 U.S.C. Sec. 552a(b) (2002). The types of information that
may not be disclosed include medical, educational, criminal, financial,
and employment records. 5 U.S.C. Sec. 552a(a)(4) (2002).
\62\ The Privacy Act, for example, excepts disclosures that
constitute a ``routine use'' of such information by an agency that ``is
compatible with the purpose for which it was collected.'' 5 U.S.C.
Sec. 552a(d) (2002). It also permits disclosure for law enforcement
purposes, in response to a Congressional request, pursuant to court
order, for the purpose of carrying out a census, or to a consumer
reporting agency. 5 U.S.C. Sec. 552a(b) (2002).
\63\ 5 U.S.C. Sec. 552a(g)(4) (2002).
\64\ 5 U.S.C. Sec. 552a(d) (2002).
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Technological developments have increasingly facilitated
the collection and dissemination of personally identifiable
information and have correspondingly increased the potential
for misuse of such information.\65\ Compliance with the Privacy
Act by Federal agencies, however, remains ``uneven,'' according
to the GAO.\66\
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\65\ The Federal Trade Commission, for example, reported that the
number of identity theft complaints it received in 2002 nearly doubled
from the previous year and that identity theft is the Commission's
``most widely reported consumer crime since the agency started issuing
reports three years ago.'' Jennifer 8. Lee, Identity Theft Complaints
Double in '02, N.Y. Times, Jan. 23, 2003, at 1.
\66\ U.S. Government Accountability Office, Privacy Act: OMB
Leadership Needed To Improve Agency Compliance, GAO-03-304, at 1 (June
2003).
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Since the September 11, 2001 terrorist attacks, Congress
has sought to balance two competing goals: keeping the nation
secure and protecting the privacy rights of our Nation's
citizens. The desire to achieve and maintain this balance was
reflected in the debate concerning the creation of the
Department of Homeland Security (DHS). In 2002, the
Subcommittee held a hearing on various privacy and
administrative law issues presented by the anticipated creation
of DHS.\67\ Among the matters considered were issues concerning
how this new agency would ensure the privacy of personally
identifiable information as it ``establishes necessary
databases that coordinate with other agencies of the
Government.'' \68\ Concerns were expressed on a bipartisan
basis about the agency's ability to collect, manage, share, and
secure personally identifiable information.\69\
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\67\ Administrative Law, Adjudicatory Issues, and Privacy
Ramifications of Creating a Department of Homeland Security: Hearing
Before the Subcomm. on Commercial and Administrative Law of the House
Comm. on the Judiciary, 107th Congress (2002).
\68\ Id. at 2.
\69\ See, e.g., id. at 4 (statements of Rep. Mark Green (R-WI) and
Rep. Maxine Waters (D-CA)).
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During the course of the hearing, it became apparent that
DHS would benefit from the formal appointment of an individual
responsible for privacy issues who would be accountable to
Congress. In response to such persuasive testimony, the
legislation establishing DHS was subsequently amended on a
bipartisan basis to require the appointment of a privacy
officer.\70\ This legislation, the Homeland Security Act of
2002, was signed into law on November 25, 2002.\71\
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\70\ H. Rep. No. 107-609, at 9-10 (2002).
\71\ Pub. L. No. 107-296, Sec. 222, 116 Stat. 2135, 2155 (2002).
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Since its establishment, the DHS Privacy Officer has
spearheaded various privacy initiatives. These include the
creation of a Data Privacy and Integrity Advisory Committee,
which ``advises the Secretary of the Department of Homeland
Security and the DHS Chief Privacy Officer on programmatic,
policy, operational, administrative, and technological issues
within DHS that affect individual privacy, as well as data
integrity and data interoperability and other privacy related
issues.'' \72\ In 2006, for example, the Advisory Committee
issued a report setting forth a ``recommended framework for
analyzing programs, technologies, and applications in light of
their effects on privacy and related interests.'' \73\
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\72\ U.S. Department of Homeland Security Organization--Department
Structure: Privacy Office--DHS Data Privacy and Integrity Advisory
Committee, at http://www.dhs.gov/dhspublic/interapp/editorial/
editorial__0512.xml.
\73\ Report of the Department of Homeland Security Data Privacy and
Integrity Advisory Committee--Framework for Privacy Analysis of
Programs, Technologies, and Applications, at 1 (Mar. 7, 2006).
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Based on the apparent success of the DHS Privacy Officer,
the Subcommittee proposed the designation of a senior official
in DOJ to execute similar responsibilities. This provision was
included in legislation reauthorizing the Justice Department,
enacted into law in 2006 as the Violence Against Women and
Department of Justice Reauthorization Act of 2005.\74\
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\74\ Pub. L. No. 109-162, Sec. 1174, 119 Stat. 2960, 3124-25
(2006).
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On May 17, 2006, the Subcommittee held an oversight hearing
on ``Privacy in the Hands of the Government: The Privacy
Officer for the Department of Homeland Security and the Privacy
Officer for the Department of Justice.'' Witnesses at the
hearing included: Maureen Cooney, Acting Chief Privacy Officer
at DHS; Jane Horvath, DOJ Chief Privacy and Civil Liberties
Officer; Professor Sally Katzen of George Mason University
School of Law; and Linda Koontz, Director of Information
Management Issues at GAO. The hearing provided the Subcommittee
an opportunity to review the work and performance of the
principal individuals charged with protecting our citizens'
privacy at DHS and DOJ.
State taxation of Interstate Telecommunications Services
Summary.--Over the past 30 years, there has been a drastic
change in the communications industry, including the
divestiture of the monopoly AT&T into seven regional operation
companies, the deregulation of the industry beginning with the
enactment of the Telecommunications Act of 1996, the
extraordinary innovation in technology and the numerous mergers
of companies throughout the technology industries. This move
from a monopoly to a competitive market has been encouraged by
the Federal and State governments. State tax policies, on the
other hand, have not changed at the same rate as the industry's
evolution.
The states' tax policies regarding the telecommunication
industry began to develop in the early 1900s when there was a
monopoly for these services. The States and localities, in
exchange for permitting a monopoly, levied industry-specific
taxes to compensate the local governments for the company's use
of public resources. The companies were allowed to recoup these
taxes by including them into their commercial rates and passing
them through to the customers.\75\
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\75\ Telecommunications Tax Policies: Implications for the Digital
Age, National Governors' Association (Feb. 2000).
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In 1998, pursuant to the Internet Tax Freedom Act, Congress
created the Advisory Commission on Electronic Commerce
(``ACEC'') and directed it to conduct a comprehensive study of
the current system of taxation as it related to the Internet
and electronic commerce.\76\ Specifically, ACEC was instructed
to examine ``ways to simplify Federal and State and local taxes
imposed on the provision of telecommunications services.'' \77\
ACEC recognized four areas of Federal, State and local
telecommunications taxation worthy of close examination: (1)
the 3% federal excise tax; (2) State and local property taxes
levied on telecommunications service providers; (3) State and
local taxes on telecommunications service providers' business
inputs; and (4) State and local transaction taxes on
telecommunications.\78\
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\76\ Omnibus Consolidated and Emergency Supplemental Appropriations
Act, 1999, Pub. L. No. 105-277, Title XI, 112 Stat. 2681 (1999).
\77\ Id. at Sec. 1102(g)(2)(F).
\78\ Advisory Commission on Electronic Commerce, Report to Congress
26 (April 2000) available at http://www.ecommercecommission.org/
acec__report.pdf.
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During the same period, the National Governors' Association
and the National Council of State Legislators called for
similar reviews and reforms of the State tax policies regarding
telecommunications \79\. Since these events, there has been
little change in the State and local telecommunications tax
laws.\80\
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\79\ Telecommunications Tax Policies: Implications for the Digital
Age, National Governors' Association (Feb. 2000). This report suggested
that States take eight specific steps to achieve tax reform:
1. Examine state telecommunications services.
2. Clarify definitions of telecommunications services.
3. Shift from a gross receipts tax to a corporate net income tax.
4. Expand the definition of services under sales and use taxes.
5. Extend the sales and use tax exemption for manufacturing to
equipment used to provide telecommunications services.
6. Equalize assessment rations in real and personal property taxes.
7. Examine local telecommunications taxes and fees.
8. Promote administrative simplicity.
The National Council of State Legislators (``NCSL'') drafted and
agreed to a resolution on Telecommunications Tax Reform in 2000. This
resolution included six items on which they encouraged States to work
with localities and telecommunications providers to simplify and
modernize the telecommunications tax system. See Resolution on
Telecommunication Tax Reform, unanimously adopted by the full NCSL
Executive Committee (July 2004), available at http://www.ncsl.org/
programs/fiscal/teltaxreform.htm.
\80\ Over the last six years, only a few States have addressed
reform. In 2006, the Virginia General Assembly passed a major reform of
their communications laws. This included a reduction in the tax rate on
telecommunications services from 29.77% to 5%, extending that tax to
include all areas of communications, including Voice Over the Internet
Protocol (VOIP) and satellite, and reduced the number of returns by
having the state collect the taxes, instead of each locality. Kentucky
and Missouri have also recently addressed rate reforms.
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The tax structure for the telecom industry is marked by
different taxes levied by different government entities. This
has resulted in taxes and fees that culminate in making the
telecommunications industry one of the highest taxed major
industries, just below alcohol, gas and tobacco.\81\ Unlike the
taxes on alcohol and tobacco, which are partially to discourage
the use of those products and considered ``sin'' taxes, States
generally do not want to discourage the use of, or growth of,
the communications industry. As the industry becomes more
competitive, it is no longer a safe assumption that any taxes
levied on the telecommunications industry will be able to be
passed through to the consumer or that it will not effect the
consumer's actions.\82\
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\81\ Telecommunications Tax Policies: Implications for the Digital
Age, National Governors' Association, at 7 (Feb. 2000).
\82\ Id. at 8.
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In 2004, the average State and local effective tax rate
nationwide on telecommunications services was 14.17%.\83\ This
is more than double the effective tax rate for general
businesses nationally. The State and localities each levy a
number of different taxes and fees that culminate in the
effective rate. These taxes burden the consumers and can
constitute over 20% of their telecommunications bill.\84\ These
taxes also tend to be regressive, thus affecting lower income
customers to a greater degree than medium and higher income
customers.\85\
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\83\ Council on State Taxation, 2004 State Study and Report on
Telecommunications Taxes [2004 COST Study]. This amount varies from
state to state, from 27.31% in Maryland to 3.97% in Nevada. See id. at
Table of Effective State, Local & Federal Telecommunications Taxes by
State, 2004.
\84\ Sean Parnell, ``State Taxes Hit Telecom Services Doubly
Hard'', Budget & Tax News, August 1, 2005.
\85\ Joseph J. Cordes, Repealing the Telecom Excise Tax: An
Economic Primer, at 5 (April 2000). The Tax Foundation, Federal Excise
Tax Collections by Income Class (2001), http://www.taxfoundation.org./
tasdata/show/525.html.
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The Subcommittee held a hearing on June 13, 2006 to look at
the burdens placed on consumers by the State and local taxes
placed on communication service, the types and number of
different taxes levied on communication services, the effect
these taxes have on the marketplace, and how the States and
localities are currently addressing this issue of over
taxation.
At the hearing Members heard from Steven Rauschenberger,
Illinois State Senator and President of the National Conference
of State Legislators; Scott Mackey, a Economist with Kimbell
Sherman Ellis; David Quam, the Legislative Director for the
National Governors Association; and Stephen Kranz, Counsel for
the Council on State Taxation.
The 60th Anniversary of the Administrative Procedure Act: Where do we
go from here?
Summary.--As this year marked the 60th anniversary of the
Administrative Procedure Act (APA),\86\ the Subcommittee
determined that this event provided a timely opportunity to
consider whether the Act sufficiently addresses current issues
and challenges presented by administrative law, process and
procedure. Enacted in 1946, the APA establishes minimum
procedures to be followed by Federal administrative agencies
when they conduct business that affects the public and requires
judicial review of certain administrative acts. Many agency
actions, however, are not subject to the APA. As one academic
noted, ``[T]he American administrative system, by evolution and
design, is characterized by a considerable degree of
informality, agency discretion and procedural flexibility.''
\87\
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\86\ 5 U.S.C. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372,
7521 (2000).
\87\ Gary J. Edles, Lessons from the Administrative Conference of
the United States, 2 European Pub. L. 571, 572 (1996).
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Witnesses who testified at the July 25, 2006, hearing
included: Professor Bill West who discussed the results of his
study of how agencies develop proposed rules. A former chair of
ACUS, Professor Marshall Breger of The Catholic University of
America--Columbus School of Law, described the benefits of
ACUS. Professor M. Elizabeth Magill from the University of
Virginia School of Law, explained why there is a need for
empirical research in the area of administrative law, process
and procedure. Professor Cary Coglianese provided an update on
certain developments in the area of e-rulemaking.
Administrative Law, Process and Procedure Project for the 21st Century
On November 14, 2006, the Subcommittee conducted an
oversight hearing on the Administrative Law, Process and
Procedure Project for the 21st Century. A description of the
Project appears earlier in this section. Witnesses from the
American Law Division of the Congressional Research Service who
testified about the Project at the hearing were the following:
Morton Rosenberg, Specialist in American Public Law; Curtis
Copeland, Specialist in American National Government; and T.J.
Halstead, Legislative Attorney.
This hearing was the seventh that the Subcommittee
conducted as part of the Project. These hearings included
oversight hearings held in the 108th Congress on the
reauthorization of the ACUS at which Justices Antonin Scalia
and Stephen Breyer testified.\88\ As elsewhere noted in this
Activities Report, the Subcommittee held a hearing that focused
on the Congressional Review Act in light of that Act's tenth
anniversary.\89\ In addition, the Subcommittee held a hearing
on how the Regulatory Flexibility Act (RFA) \90\ has been
implemented since its enactment in 1980 and whether proposed
legislation could adequately address perceived weaknesses in
the RFA.\91\
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\88\ Reauthorization of the Administrative Conference of the United
States: Hearings Before the Subcomm. on Comm. and Admin. Law of the H.
Comm. on the Judiciary, 108th Cong. (2004).
\89\ Tenth Anniversary of the Congressional Review Act: Hearing
Before the Subcomm. on Commercial and Administrative Law of the H.
Comm. on the Judiciary, 109th Cong. (2006).
\90\ Pub. L. No. 96-354, Stat. 1164 (1980) (codified at 5 U.S.C.
Sec. Sec. 601-612).
\91\ The Regulatory Flexibility Improvements Act: Hearing on H.R.
682 Before the Subcomm. on Commercial and Administrative Law of the H.
Comm. on the Judiciary, 109th Cong. (2006). The GAO has on numerous
occasions cited various deficiencies with the RFA. See. e.g., SBBEFA
Compliance--Is It the Same Old Story?: Hearing Before the H. Comm. on
Small Business, 107th Cong. 51 (2002) (statement of Victor Rezendes,
Managing Director--Strategic Issues Team, U.S. Government
Accountability Office); Regulatory Flexibility Act--Status of
Director--Strategic Issues Team, U.S. Government Accountability
Office); Regulatory Flexibility Act--Status of Agencies' Compliance:
Hearing Before the S. Comm. on Small Business, 104th Cong. 51 (1995)
(statement of Johnny C. Finch, Assistant Comptroller General--General
Government Division, U.S. Government Accountability Office); U.S.
Government Accountability Office, Regulatory Flexibility Act: Status of
Agencies' Compliance, GAO/GGD-94-105 (Apr. 27, 1994); U.S. Government
Accountability Office, Regulatory Flexibility Act: Inherent Weaknesses
May Limit Its Usefulness for Small Governments, GAO/HRD-91-16 (Jan. 11,
1991).
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In addition to conducting hearings, the Subcommittee
cosponsored three symposia as part of the Project. The first
symposium, held in December 2005, was on Federal E-Government
Initiatives. This program, chaired by Professor Coglianese of
the University of Pennsylvania Law School, examined the
Executive Branch's efforts to implement e-rulemaking across the
Federal government. A particular focus of this program was on
the ongoing development of a government-wide Federal Docket
Management System (FDMS). Presentations at the symposium were
given by government managers involved in the development of the
FDMS, as well as by academic researchers studying e-rulemaking.
Representatives from various agencies, including OMB, the U.S.
Environmental Protection Agency, and the GAO, discussed the
current progress of e-rulemaking. In addition, academics
reported on current and prospective research endeavors dealing
with certain aspects of e-rulemaking. The program offered a
structured dialogue that addressed the challenges and
opportunities for implementing e-rulemaking, the outcomes
achieved by e-rulemaking to date, and strategies that could be
used in the future to improve the rulemaking process through
application of information technology.
The second symposium, held at American University, examined
the role of science in the rulemaking process.\92\ The
symposium consisted of four panels: OMB's recent initiatives on
regulatory science, science and the judicial review of
rulemaking, science advisory panels and rulemaking, and
government agencies' science capabilities.
---------------------------------------------------------------------------
\92\ http://www.american.edu/rulemaking/news/index.htm (symposium
transcript).
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The third symposium, held on September 11, 2006, considered
Congressional, Presidential and Judiciary review of agency
rulemaking. This program, hosted by CRS, also examined
conflicting claims of legal authority over rulemaking by the
Congressional and Executive branches.
As part of the Project, several studies were also
conducted. One study, conducted by Professor Bill West from
Texas A&M University, examines the role of public participation
before notice and comment. The second study focused on court
challenges to agency rulemakings. Professor Jody Freeman of
Harvard Law School conducted an independent analysis of a
database consisting of every case involving administrative
agencies that were appealed to the U.S. Court of Appeals for
all 12 circuits over a ten-year period. The third study, which
is being conducted by Professor Stuart Brettschneider of the
Maxwell School of Public Administration of Syracuse University,
will determine how many science advisory committees currently
exist, how their members are selected, how issues of neutrality
and conflicts of interest are resolved, and how issues are
selected for review, among other matters.
On December 7, 2006, the Subcommittee reported favorably
the Interim Report on the Administrative Law, Process, and
Procedure Project for the 21st Century without amendment.
The arbitration process of the National Football League Players
Association
The Subcommittee has jurisdiction over title 9 of the
United States Code, which deals with arbitration. That title
was adopted nearly 60 years ago in an effort to alleviate
pressure on the federal courts by encouraging parties to
arbitrate and settle differences before they reach the stage of
active litigation. In order to facilitate settlements by
arbitration, the title provides a strong presumption that
courts will enforce determinations arrived at under this
process. Though avenues for judicial review of arbitration
determinations exist and have been utilized by parties, the
title itself has been rarely amended.
Arbitration has been considered by the Subcommittee during
previous Congresses, most notably during the 106th Congress
when it considered the ``Fairness and Voluntary Arbitration
Act,'' legislation dealing with the arbitration procedure
employed by agreement to resolve disputes between automobile
manufacturers and their sales franchisees. In that situation, a
principal item of contention was that franchisees were forced
into contracts of adhesion that required them to agree to
arbitrators who, because of their relationship to the
manufacturers, were not perceived to be neutral. Ultimately,
legislation providing a more even playing field between the
manufacturers and the franchisees in resolving disputes through
arbitration was passed by the Congress and signed into law.\93\
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\93\ Pub. L. No. 107-273 (2001), 116 Stat. 1758, 1835 (2001)
(codified at 15 U.S.C. Sec. 1226 (2000)).
---------------------------------------------------------------------------
The Subcommittee has on other occasions exercised its
jurisdiction in this area. On June 25, 1999, for instance, it
held an oversight hearing entitled, ``Franchising: the
Franchise Relationship, Mutual Rights and Obligations of
Franchisees and Franchisors, and Assessing the Need for More
Regulation.'' The Subcommittee also considered legislation
restricting certain activities of sports agents when it held a
hearing on and reported H.R. 361, ``The Sports Agent
Responsibility and Trust Act'' during the 108th Congress, which
was enacted into law in 2004.\94\
---------------------------------------------------------------------------
\94\ Pub. L. No. 108-304, 118 Stat. 1124 (2004).
---------------------------------------------------------------------------
On December 7, 2006, the Subcommittee held an oversight
hearing on the arbitration process utilized by the National
Football League Players Association (NFLPA or Association).
Pursuant to the collective bargaining agreement between the
National Football League (NFL or League) and the Association,
the NFLPA is recognized as the exclusive bargaining agent for
the athletes and gives it the authority and responsibility to
control and discipline sports agents who represent the athletes
in contract negotiations with respective franchises within the
League. Under this agreement, the NFL Management Council and
its football franchises agree to negotiate player contracts
only with an agent certified by the NFLPA. Under the collective
bargaining agreement, however, the NFLPA may not decertify an
agent without permitting that agent to exhaust his opportunity
to appeal the decertification to a neutral arbitrator pursuant
to its agent regulation system.''
The purpose of the hearing was to examine certain issues
presented with respect to the NFLPA arbitration process as
applied to sports agents. Witnesses at the hearing included:
LaVar Arrington, a linebacker with the New York Giants; Richard
Berthelson, General Counsel, NFLPA; Professor Richard Karcher,
Director of the Florida Coastal School of Law Center for Law
and Sports; and Larry Friedman, Esquire, Managing Director,
Friedman and Feiger, LLP. The hearing considered such issues as
the following: (1) the fairness of the arbitration process
employed by the NFLPA; (2) whether this process ensures the
arbitrator's neutrality; (3) whether adequate opportunity for
judicial review exists; (4) whether the process comports with
the intent underlying the Federal Arbitration Act and, if not,
what might be a proper legislative response.
OTHER SUBCOMMITTEE OVERSIGHT ACTIVITIES
False Claims Act and the Department of Justice's qui tam caseload
Summary.--In April 2005, Judiciary Chairman Sensenbrenner
and Senator Charles F. Grassley (R-IA) requested that the
Government Accountability Office (GAO) conduct a study on the
False Claims Act and the Department of Justice's (DOJ) qui tam
caseload.
The False Claims Act (FCA) is one of the government's
primary weapons to fight fraud against the government. The Act
requires penalties and damages to be paid by any individual or
business that deliberately submits or causes the submission of
fraudulent claims to the United States. All parties engaged in
the legal suit are entitled to any money the government may
recover. According to GAO, since Congress amended the FCA in
1986, the government has won recoveries of over $15 billion
from fiscal years 1987 through 2005.
With regard to the request to provide information on FCA
litigation, the report addressed existing Department of Justice
policies and statutory guidance regarding the relationship
between the government and relators in prosecuting qui tam
cases.
To determine what statutory guidance and DOJ policies
exist, GAO reviewed applicable laws, regulations, and DOJ
policies regarding the relationship between the government and
relators in prosecuting qui tam cases. GAO interviewed DOJ and
other Federal officials and private practice attorneys involved
in qui tam litigation. To provide information on DOJ's qui tam
caseload, it obtained DOJ's qui tam database on closed unsealed
qui tam cases for fiscal years 1987 through 2005 and conducted
computerized analyses of certain data fields. To assess the
reliability of the data, it discussed the data collection
methods for ensuring data quality with responsible officials
and reviewed the data for reasonableness.
GAO report highlights
Statistics on the number and types of cases filed are as
follows:
1. From the fiscal years 1987 through 2005, the
number of qui tam FCA cases increased as a proportion
of total FCA cases.
2. The median FCA recovery in a qui tam case was
$784,597, of which the median relator share was
$123,885.
3. Health care and procurement fraud cases
constituted approximately 79 percent of all qui tam
cases pursued by the DOJ.
4. 2,490 closed and unsealed qui tam cases that GAO
analyzed were filed in 92 U.S. district courts.
5. Recoveries and relator share amounts were greater
in cases where DOJ intervened than in cases where DOJ
declined to intervene.
SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY
HOWARD COBLE, North Carolina,
Chairman
ROBERT C. SCOTT, Virginia DANIEL E. LUNGREN, California
SHEILA JACKSON LEE, Texas MARK GREEN, Wisconsin
MAXINE WATERS, California TOM FEENEY, Florida
MARTIN T. MEEHAN, Massachusetts STEVE CHABOT, Ohio
WILLIAM D. DELAHUNT, Massachusetts BOB GOODLATTE, Virginia
ANTHONY D. WEINER, New York RIC KELLER, Florida
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
Tabulation of subcommittee legislation and activity
Legislation referred to the Subcommittee......................... 249
Legislation on which hearings were held.......................... 38
Legislation reported favorably to the full Committee............. 13
Legislation reported adversely to the full Committee............. 0
Legislation reported without recommendation to the full Committee 6
Legislation reported as original measure to the full Committee... 0
Legislation discharged from the Subcommittee..................... 3
Legislation pending before the full Committee.................... 4
Legislation reported to the House................................ 15
Legislation discharged from the Committee........................ 0
Legislation pending in the House................................. 2
Legislation passed by the House.................................. 12
Legislation pending in the Senate................................ 7
Legislation vetoed by the President (not overridden)............. 0
Legislation enacted into Public Law.............................. 7
Legislation enacted into Public Law as part of other legislation. 5
Days of legislative hearings..................................... 21
Days of oversight hearings....................................... 24
Jurisdiction of the Subcommittee
The Subcommittee on Crime, Terrorism, and Homeland Security
has jurisdiction over the Federal Criminal Code, drug
enforcement, sentencing, parole and pardons, internal and
homeland security, Federal Rules of Criminal Procedure,
prisons, criminal law enforcement, and other appropriate
matters as referred by the Chairman, and relevant oversight.
Legislative Activities
H.R. 32, the ``Stop Counterfeiting in Manufactured Goods Act''
Summary.--The proliferation of counterfeit products in
recent years creates not only a threat to legitimate
businesses, but also to the consumer. Many of the products that
are falsely labeled are labeled with brand names or trademarks
that consumers know and trust. The mislabeling of often
inferior products creates a false sense of security for
consumers. Additionally, some of the counterfeited products,
such as prescription or over-the-counter medications, could
have serious health consequences if they are used by an
unsuspecting consumer.
FBI and customs and border agents estimate sales of
counterfeit goods are lining the pockets of criminal
organizations to the tune of about $500 billion in sales per
year. By the middle of fiscal year 2003, the Department of
Homeland Security already had reported 3,117 seizures of
counterfeit branded goods including cigarettes, books, apparel,
handbags, toys and electronic games with an estimated street
value of about $38 million--up 42 percent from last year.
For the fiscal 2003 midyear report the top five offending
countries of origin are the People's Republic of China ($26.7
million), Hong Kong ($1.9 million), Mexico ($1.6 million),
South Korea ($1.4 million) and Malaysia ($1 million). The
International AntiCounterfeiting Coalition, (IACC) estimates
that counterfeiting results in more than $200 billion a year in
lost jobs, taxes and sales. Fortune 500 companies spend an
average of between $2 million and $4 million a year each to
fight counterfeiters.
In addition to counterfeiting general retail products,
which cause huge economic losses to manufacturers, many
counterfeiters are engaged in the sales of products which may
present real threats to the health and safety of consumers such
as counterfeit prescription medications or automobile parts.
The Food and Drug Administration (FDA) indicates that
although the prevalence of counterfeit pharmaceuticals is hard
to determine, estimates suggest that upwards of 10% of drugs
worldwide are counterfeit, and in some countries more than 50%
of the drug supply is made up of counterfeit drugs. Counterfeit
drugs may include products without the active ingredient, with
an insufficient quantity of the active ingredient, with the
wrong active ingredient, or with fake packaging.
The FDA website indicates that counterfeit drugs can have
serious consequences for consumers. According to the FDA,
patients who receive counterfeit medications may experience
unexpected side effects, allergic reactions, or a worsening of
their medical condition. Additionally, the FDA has found that a
number of counterfeits do not contain any active ingredients,
and instead contain inert substances, which do not provide the
patient any treatment benefit.
The Automobile Manufacturers Association indicates that
counterfeit auto parts is a $12 billion problem globally--$3
billion in the U.S. alone. In terms of lost jobs, the
Department of Commerce estimates that the U.S. auto industry
could hire over 200,000 more workers if the counterfeit auto
parts trade disappeared. In addition to the economic losses and
loss of jobs for American workers, consumers safety is also at
risk by counterfeit automobile parts. The U.S. automobile
industry has reported a number of incidences of brake failure
caused by brake pads manufactured from wood chips.
According to the FBI's Financial Institution Fraud Unit,
counterfeit products cheat the U.S. of tax revenues, adds to
the national trade deficit, subjects consumers to health and
safety risks, and leaves consumers without any legal recourse
when they are financially or physically injured by counterfeit
products. The FBI has identified counterfeit products not only
in pharmaceuticals and automobile parts, but also in such
products as airplane parts, baby formulas and children's toys.
On March 17, 2005, the Subcommittee on Crime, Terrorism and
Homeland Security held a hearing on combating trafficking in
counterfeit products where the Subcommittee received testimony
indicating that commerce in and distribution of, packaging,
labels, tags, containers, and documentation, bearing the
registered trademarks of manufacturers of genuine goods or the
registered certification marks of product testing organizations
often occurs separately from the goods themselves, involving
different persons, and that the packaging, labels, or tags
bearing the registered mark is often matched with the goods
downstream and applied to products or services that are not
manufactured by the owner of the mark. The products and
services to which these labels, tags, documents, containers,
packaging and the like bearing registered marks are applied to
unbranded products that do not meet the product qualities or
the safety or performance requirements of the manufacturer of
genuine product or the product testing and certification
organization, and that these products can be unsafe to users
and consumers who are deceived.
H.R. 32 tightens the law which makes it a crime to traffic
in such products (18 U.S.C. Sec. 2320). H.R. 32, the ``Stop
Counterfeiting in Manufactured Goods Act'' would expand Title
18 provisions, which make it a crime to traffic in counterfeit
products. Under this legislation, section 2320 of Title 18
would be expanded to include penalties for those who traffic in
counterfeit labels, symbols, or packaging of any type knowing a
counterfeit mark has been applied.
Additionally, this legislation would require the forfeiture
of any property derived, directly or indirectly, from the
proceeds of the violation as well as any property used, or
intended to be used in relation to the offense. This
legislation also specifies that restitution must be paid to the
owner of the mark that was counterfeited.
An amendment in the nature of a substitute to H.R. 32, was
adopted by the full committee to include specific language
clarifying that repackaging activities conducted without intent
to deceive or confuse are not subject to the criminal
prosecution established under this legislation.
Legislative History.--H.R. 32 was introduced on January 4,
2005, and referred to the Committee on Judiciary. The
Subcommittee on Crime, Terrorism, and Homeland Security held a
hearing and markup of the legislation on March 17, 2005. The
Committee on Judiciary ordered the bill, H.R. 32, favorably
reported, with amendment, on April 13, 2005. The legislation
was considered by the House of Representatives under suspension
of the rules and passed on a voice vote on May 23, 2005. On
February 15, 2006, the legislation passed the Senate by
unanimous consent with an amendment. On March 7, 2006, the
House of Representatives voted to suspend the rules and pass
H.R. 32, as amended by the Senate, on a voice vote. The
President signed this bill into law on March 16, 2006. (Pub. L.
109-181)
H.R. 95, the ``Dru Sjodin National Sex Offender Public Database Act of
2005''
Summary.--Congressman Paul E. Gillmor introduced H.R. 95 on
January 4, 2005. The bill directs the Attorney General to: (1)
make publicly available in a registry via the Internet, from
information contained in the National Sex Offender Registry,
specified information about sexually violent predators and
persons convicted of a sexually violent offense or a criminal
offense against a minor, who are required to register with a
minimally sufficient State sexual offender registration
program; and (2) allow registry users to identity offenders who
are currently residing within a radius of the location
indicated by the user. Requires registry information to include
the offender's name, address, date of birth, physical
description, and photograph, the nature and date of commission
of the offense, and the date on which the person is released
from prison or placed on parole, supervised release, or
probation
The bill requires that (1) any State that provides for a
civil commitment proceeding to notify the State attorney
general of the impending release of a sexually violent predator
or a person has been deemed to be at high-risk for recommitting
any sexually violent offense or criminal offense against a
minor; (2) the State attorney general to consider instituting a
civil commitment proceeding; and (3) each State to intensively
monitor, for at least a year, any such person who has been
unconditionally released by the State and who has not been
civilly committed. Failure by states to implement requirements
of the Act makes them ineligible to receive 25 percent of funds
that would otherwise be allocated to it under the Violent Crime
Control and Law Enforcement Act of 1994.
Legislative History.--On January 4, 2005, H.R. 95 was
referred to the Committee on the Judiciary. On March 2, 2005,
it was referred to the Subcommittee on Crime, Terrorism, and
Homeland Security. The Subcommittee on Crime, Terrorism and
Homeland Security held a hearing on H.R. 95 on June 9, 2005.
Similar provisions were included in H.R. 4472. No further
action has been taken.
H.R. 244, the ``Save Our Children: Stop the Violent Predators Against
Children DNA Act of 2005''
Summary.--Congresswoman Sheila Jackson-Lee introduced H.R.
244 on January 6, 2005. H.R. 244 directs the Attorney General
to establish and maintain a database solely for collecting DNA
(deoxyribonucleic acid) information with respect to violent
predators against children. The bill (1) authorizes Federal,
State, and local agencies and other entities to submit DNA
information for the database and to compare DNA information
within the database, (2) directs the Attorney General to make
grants to States to improve programs to decrease recidivism of
such predators, (3) requires the maximum sentence to be imposed
for a crime of violence, including a sex crime, against an
individual under age 18 that would, in and of itself, establish
the offender as such a predator, without regard to any
mitigating circumstance that would otherwise apply.
Legislative History.--On January 6, 2005, H.R. 244 was
referred to the Committee on the Judiciary. On March 2, 2005,
it was referred to the Subcommittee on Crime, Terrorism, and
Homeland Security. The Subcommittee on Crime, Terrorism and
Homeland Security held a hearing on H.R. 244 on June 9, 2005.
Similar provisions were included in H.R. 4472. No further
action has been taken.
H.R. 764, to Require the Attorney General to Establish a Federal
Register of Cases of Child Abuse or Neglect
Summary.--Congresswoman Sue W. Kelly introduced H.R. 764 on
February 10, 2005. H.R. 764 directs the Attorney General to
create a national register of cases of child abuse or neglect
(abuse), with the information in the register supplied by
States or political subdivisions. Requires the register to
collect information on children reported as abused in a central
electronic database.
Legislative History.--On February 10, 2005, H.R. 764 was
referred to the Committee on the Judiciary. On March 4, 2005,
it was referred to the Subcommittee on Crime, Terrorism, and
Homeland Security. The Subcommittee on Crime, Terrorism and
Homeland Security held a hearing on H.R. 764 on June 9, 2005.
Similar provisions were included in H.R. 4472. No further
action has been taken.
H.R. 817, the ``Animal Fighting Prohibition Enforcement Act of 2005''
Summary.--Dog fighting is prohibited in all 50 states and
cockfighting is outlawed in most states under specific laws
prohibiting it or general prohibitions against animal fighting.
In a few states, the practice is not specifically outlawed;
however, general animal cruelty statutes may be interpreted to
outlaw such activities.\1\ Virginia prohibits profiting or
gambling on a ``cockfight'', but does not specifically prohibit
the activity. In two states, ``cockfighting'' is legal.\2\
Dogfighting is legal in American Samoa and Guam.
``Cockfighting'' is legal in American Samoa, Guam, Puerto Rico
and the Virgin Islands.
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\1\ Arkansas, Georgia, Hawaii, Kentucky and Virginia have general
cruelty to animal statutes that do not specify ``cockfighting'' as
prohibited.
\2\ New Mexico and Louisiana specifically exempt ``cockfighting''
as prohibited activity.
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In 1976, Congress passed a law to ban the sponsor or
exhibit of animals that were moved in interstate or foreign
commerce in an animal fighting venture. The law also made it
illegal to buy, sell, deliver, or transport an animal in
interstate or foreign commerce for participation in an animal
fighting venture. Additionally, Congress banned the use of the
U.S. mail or any other instrument of interstate or foreign
commerce to promote an animal fight. With respect to fighting
ventures involving live birds, the law specifically included
only those states that banned fighting ventures. Violations of
this law were made punishable by up to a $5,000 fine and 1 year
imprisonment, or both.
On May 13, 2002, Congress enacted amendments to the Animal
Welfare Act, which took effect on May 14, 2003. The changes
made it a crime, regardless of state law, for exhibiting,
sponsoring, selling, buying, transporting, delivering, or
receiving a bird or other animal in interstate or foreign
commerce for the purposes of participation in an animal
fighting venture such as cockfighting or dogfighting, according
to Section 26 of the Act. For states where fighting among live
birds is allowed under the law, the Act only prohibited the
sponsor or exhibit of a bird for fighting purposes if the
person knew that the bird was knowingly bought, sold,
delivered, transported, or received in interstate or foreign
commerce. The change in the Animal Welfare Act closed a
loophole that allowed shipment of birds from a state where
cockfighting is illegal to a state where it is legal. The
change in the Act also increased the possible fines for
violations from $5,000 to $15,000.
H.R. 817 is intended to strengthen the prohibitions against
animal fighting ventures within the United States. H.R. 817
would establish stricter penalties for animal fighting than
those that currently exist under Title 7 of the U.S. Code. In
effect, H.R. 817 would establish criminal penalties for the
buying, selling, or the transporting of animals for
participation in animal fighting ventures. These new
prohibitions would be placed in Chapter 3 of Title 18, U.S.
Code.
Although the possible fines were increased in 2003, the
possible term of imprisonment of the Animal Welfare Act dealing
with animal fighting has not been updated since the original
enactment of 1976. H.R. 817, the Animal Fighting Prohibition
Enforcement Act of 2005, intends to address the modern problems
associated with animal fighting ventures. The Act establishes
criminal penalties under Title 18; authorizing jail time of up
to two (2) years for violations of federal animal fighting law,
rather than the misdemeanor penalty (up to one year) which
currently exists under Title 7.
Legislative History.--H.R. 817 was introduced by
Representative Mark Green on February 15, 2005. The legislation
was referred to the Committee on Judiciary and the Committee on
Agriculture. Hearings on H.R. 817 were held at the Subcommittee
on Crime, Terrorism, and Homeland Security on May 18, 2005.
H.R. 1279, the ``Gang Deterrence and Community Protection Act of 2005''
Summary.--Gang violence in America is a growing problem.
While national figures have shown a decline in violent crime
generally, the proportion of violent crimes committed by gang
members has increased. In 2003, juvenile gang members committed
over 800 murders across the nation. Gangs have been directly
linked to illegal drug trafficking, human trafficking,
identification documentation falsification, violent maimings,
assault and murder, and the increased use of firearms to commit
deadly crimes.
While the data in the preliminary report has not been
grouped by age at this time, a number of localities have
pointed to a increase in juvenile delinquency. A growing
concern among many in the criminal justice field is that as
many convicts finish the long prison terms handed down in the
1990's, are released into society, and begin to integrate with
the younger criminal element, crime will continue to spike.
In response to gang violence, Congressman J. Randy Forbes
introduced H.R. 1279 on March 14, 2005. This bill seeks to
build on strategies that work, including: (1) mandatory-minimum
penalties for crimes of violence to incapacitate violent gang
members and to gain leverage from less culpable gang members in
order to secure cooperation of insiders to solve gang crimes
and prosecute higher-ups in the organization; (2) joint task
forces of Federal, State and local law enforcement and
prosecutors that will join Federal resources with local
intelligence in order to target the most serious gangs in a
community; (3) the promotion of intelligence sharing among
Federal, State and local law enforcement agencies; and (4)
limited juvenile justice reform to ensure that violent juvenile
gang members are prosecuted for acts of violence.
Legislative History.--On March 14, 2005, H.R. 1279 was
referred to the Committee on the Judiciary. On April 4, 2005,
it was referred to the Subcommittee on Crime, Terrorism, and
Homeland Security. A legislative hearing on H.R. 1279 was held
on April 5, 2005. Testimony was received from four witnesses,
representing the United States Department of Justice, the
National District Attorney's Association, Michelle Guess, a
victim of gang violence, and Professor Robert Shepard,
University of Richmond Law School, Richmond, Virginia, with
additional material submitted by various organizations. On
April 12, 2005, the Subcommittee on Crime, Terrorism, and
Homeland Security met in open session and ordered favorably
reported the bill H.R. 1279, by a vote of 5 to 3, with one
member voting present, a quorum being present. On April 20,
2005, the Committee met in open session and ordered favorably
reported the bill H.R. 1279 with an amendment by a recorded
vote of 16 to 11, a quorum being present. The bill was placed
on the Union Calendar No. 35 on May 5, and on May 11 passed the
House by the Yeas and Nays 279-144. The following day, H.R.
1279 was received in the Senate, read twice, and referred to
the Committee on the Judiciary. No further action was taken on
this bill.
H.R. 1355, the ``Child Predator Act of 2005''
Summary.--Congressman Ted Poe introduced H.R. 1355 on March
16, 2006. This bill amends the Jacob Wetterling Crimes Against
Children and Sexually Violent Offender Registration Act to: (1)
expand the definition of ``criminal offense against a victim
who is a minor'' to include every offense, whether Federal,
State, local, tribal, foreign, or otherwise, that involves one
or more of specified characteristics (such as kidnapping or
sexual conduct), when committed against a minor; and (2) define
``child predator'' as a person who is convicted of such an
offense that is sexual in nature, where the minor is age 13 or
younger. The bill also requires states to establish a registry
for sex offenders and for the Federal Bureau of Investigation
to disclose to the public, on a free-access Internet site, all
information collected regarding each child predator, including
a recent photograph.
Legislative History.--On March 16, 2005, H.R. 1355 was
referred to the Committee on the Judiciary. On April 4, 2005,
it was referred to the Subcommittee on Crime, Terrorism, and
Homeland Security. The Subcommittee held a hearing on H.R. 1355
on June 9, 2005. Most of H.R. 1355 was incorporated into the
text of H.R. 4472, the ``Adam Walsh Child Protection and Safety
Act,'' which was signed into law on July 27, 2006 (Pub. L. 109-
248).
H.R. 1384, the ``Firearm Commerce Modernization Act''
Summary.--Congressman Phil Gingrey (R-GA) introduced H.R.
1384 on March 17, 2005. H.R. 1384 provides for the interstate
sale of hand guns, subject to the same requirements for
legality that currently exist for the interstate sale of long-
guns, that is: the sale must be in person; the sale must be
legal in the state of the selling Federal firearm licensee
(``FFL''), and in the state of the gun purchaser; and the sale
must comply with all Federal laws, including the purchaser
passing a background check.
Currently handguns are treated differently than long-guns;
handguns must be shipped by the FFL in the state of purchase to
another FFL in the purchaser's state of residence, and then
transferred by that FFL to the purchaser. The shipment of
firearms by common carrier comes with the attendant risk of
loss or theft. This outdated provision regarding handguns now
blocks or delays many legal sales to law-abiding citizens.
The bill eliminates the need to involve an FFL in the
purchaser's state of residence. FFLs are provided with a
publication from the BATFE, containing all Federal and state
gun laws, and the current background check systems are more
effective in blocking unlawful sales than the checks envisioned
in 1968. If an FFL is not certain that a sale will be legal in
both states and under Federal law, then the FFL does not have
to complete the transaction.
Legislative History.--On Wednesday, May 3, 2006, the
Subcommittee on Crime, Terrorism, and Homeland Security held a
legislative hearing on H.R. 1384. This hearing focused on the
need to update and modify existing law regarding the interstate
sale of firearms. Testifying before the Subcommittee were (1)
the Honorable Phil Gingrey, Member of Congress, Georgia, 11th
District; (2) the Honorable Steve King, Member of Congress,
Iowa, 5th District; and (3) the Honorable Carolyn McCarthy,
Member of Congress, New York, 4th District. The Subcommittee,
via voice vote, reported the bill favorably to the full
committee on May 18, 2006. On Wednesday, September 6, 2006, the
Committee on the Judiciary conducted a markup on H.R. 1384, and
reported the bill favorably.
H.R. 1400, the ``Securing Aircraft Cockpits Against Lasers Act of
2005''
Summary.--On March 17, 2005, Rep. Ric Keller (R-FL)
introduced H.R. 1400, the ``Securing Aircraft Cockpits Against
Lasers Act of 2005,'' to address the growing problem of
individuals intentionally aiming lasers at the cockpits of
aircraft, particularly at the critical stages of take-off and
landing. This practice constitutes a threat to aviation
security and passenger safety. H.R. 1400 adds a section
following 18 U.S.C. Sec. 38 to impose criminal penalties upon
any individual who knowingly aims a laser pointer at an
aircraft within the special aircraft jurisdiction of the United
States. The criminal penalties include fines of up to $250,000
and imprisonment of up to five years.
Legislative History.--The bill was reported (Amended) by
the Committee on Judiciary on October 18, 2005. It was passed
by the House on December 7, 2005. It was amended and passed by
the Senate on December 22, 2005.
H.R. 1415, the ``NICS Improvement Act of 2005''
Summary.--Congresswoman Carolyn McCarthy (D-NY) introduced
H.R. 1415 on March 17, 2005. H.R. 1415 provides money and
incentives for the states to update and automate their records
regarding criminal dispositions, mental illness determinations,
restraining orders and domestic violence misdemeanor
convictions so those records can easily be included in and
searched by National Instant Criminal Background Check System
(``NICS''). These funds are intended to ensure that law-abiding
citizens can purchase weapons and that prohibited persons
cannot.
The integrity and accuracy of the NICS system depends on
states providing updated and accurate records in electronic
format. NICS is operated by the FBI, and is used to conduct
background checks of firearms purchasers before they are
permitted to buy a firearm. When an individual enters any gun
dealership to purchase a firearm, the dealer calls the NICS
Call Center, a state-of-the-art computer facility in
Clarksburg, West Virginia, or uses the new NICS E-Check online
system to conduct the background check.
Legislative History.--On Wednesday, May 3, 2006, the
Subcommittee on Crime, Terrorism, and Homeland Security held a
legislative hearing on H.R. 1415. This hearing focused on the
need to assist states to ensure that they provide complete,
accurate and updated data to NICS. Testifying before the
Subcommittee was the sponsor of the bill, the Honorable Carolyn
McCarthy, Member of Congress, New York, 4th District. The
Honorable John Dingell, Member of Congress, Michigan, 15th
District, submitted written testimony regarding H.R. 1415. The
Subcommittee, via voice vote, reported the bill favorably to
the full committee on May 18, 2006. On Wednesday, September 6,
2006, the Committee on the Judiciary conducted a markup on H.R.
1415.
H.R. 1505, the ``Jessica Lunsford Act''
Summary.--Congresswoman Ginny Brown-Waite introduced H.R.
1505 on April 6, 2005. This bill amends the Jacob Wetterling
Crimes Against Children and Sexually Violent Offender
Registration Act to direct that State procedures include a
process under which the State mails a nonforwardable
verification form at least twice a year to the last known
address of the person required to register as a sexually
violent offender, to be returned within ten days after receipt,
with failure to return the form within the period allowed
punishable in the same manner as a failure to register.
Legislative History.--On April 6, 2005, H.R. 1505 was
referred to the Committee on the Judiciary. On May 10, it was
referred to the Subcommittee on Crime, Terrorism, and Homeland
Security. The Subcommittee on Crime, Terrorism and Homeland
Security held a hearing on H.R. 1505 on June 9, 2005. Similar
provisions were included in H.R. 4472, the ``Adam Walsh Child
Protection and Safety Act,'' which was signed into law on July
27, 2006 (Pub. L. 109-248).
H.R. 1528, the ``Defending America's Most Vulnerable: Safe Access to
Drug Treatment and Child Protection Act of 2005''
Summary.--Chairman F. James Sensenbrenner, Jr. introduced
H.R. 1528 on April 6, 2005. This legislation strengthens the
laws regarding trafficking to minors and creating enhanced
criminal penalties for individuals who traffic drugs near a
drug treatment facility. It provides sound statutory reforms of
what are currently ``feel-good,'' but ineffective drug laws
designed to protect children (drug free school zones and
prohibitions of distributing drugs to minors). These provisions
are rarely prosecuted for the simple reason that they carry no
effective period of incarceration (one year mandatory minimum
in most cases).
Legislative History.--On April 6, 2005, H.R. 1528 was
referred to the Committee on the Judiciary. On April 11, it was
referred to the Subcommittee on Crime, Terrorism, and Homeland
Security. The Subcommittee held a hearing on this bill on April
12, and on that same day forwarded the bill to the Full
Committee by the Yeas and Nays 6-1. No further action was taken
on this bill.
H.R. 1704, the ``Second Chance Act of 2005''
Summary.--Congressman Rob Portman introduced the Second
Chance Act of 2005 on April 19, 2005. Over a period of two
years, $146 million in Federal funding would be authorized to
implement H.R. 1704 with the goal of increasing the success of
prisoners at the Federal, state, and local levels reentering
society following incarceration.
The Second Chance Act of 2005 amends the Omnibus Crime
Control and Safe Streets Act of 1968 to reauthorize existing
demonstration projects and reform existing programs to include
greater use of graduated sanctions that ensure compliance by
adult and juvenile offenders.
The bill authorizes the U.S. Attorney General to make a
grant to provide for the establishment of a National Adult and
Juvenile Offender Reentry Resource Center. It directs the
Attorney General to establish an interagency task force on
Federal programs regarding offender reentry, and authorizes the
National Institute of Justice and the Bureau of Justice
Statistics to conduct scientifically valid research on offender
reentry.
Included among the bill's provisions for improving reentry
services are (1) establishing a Reentry Task Force, (2)
expanding the use of educational testing services and mentors;
(3) encouraging transitional housing programs; (4) offering a
continuum of drug treatment services; (5) encouraging continued
relationships between offenders and family members while
offenders are incarcerated; and (6) issuing grants for
successful family-based drug treatment programs. Additionally,
H.R. 1704 introduces the incentive of a grant program for
States and local communities to increase in-prison drug
treatment programs--a key inclusion, considering only 10
percent of drug addicts receive drug treatment while
incarcerated.
Legislative History.--On April 10, 2005, H.R. 1704 was
referred to the House Committee on the Judiciary. On May 10,
2005, it was referred to the Subcommittee on Crime, Terrorism,
and Homeland Security. A legislative hearing was held on
November 3, 2005, with the following witnesses testifying
before the Subcommittee: The Honorable Robert L. Ehrlich, Jr.,
Governor, State of Maryland; The Honorable Chris Cannon, Member
of Congress, 3rd District, Utah; The Honorable Danny K. Davis,
Member of Congress, 7th District, Illinois; and The Honorable
Stephanie Tubbs Jones, Member of Congress, 11th District, Ohio.
A second legislative hearing took place on February 8, 2006,
entitled ``Second Chance Act (Part II): An Examination of Drug
Treatment Programs Needed to Ensure Successful Reentry,'' with
four witnesses testifying: Dr. Nora Volkow, Director, National
Institute on Drug Abuse; Ken Batten, Director, Office of
Substance Abuse Services, Virginia Department of Mental Health,
Mental Retardation and Substance Abuse Services; Ms. Pamela
Rodriguez, Executive Vice President, Treatment Alternatives for
Safe Communities (TASC, Inc.); and Ms. Lorna Hogan, Associate
Director of Sacred Authority, The Rebecca Project for Human
Rights. A Subcommittee markup session was held for H.R. 1704 on
February 15, where the bill was forwarded to Full Committee by
voice vote. The full committee considered H.R. 1704 on July 12,
July 19 and July 26, 2006. The bill was favorably reported by
voice vote on July 26, 2006. No further actions were taken on
H.R. 1704 during the 109th Congress.
H.R. 1751, the ``Secure Access to Justice and Court Protection Act of
2005''
Summary.--Congressman Louie Gohmert introduced H.R. 1751 on
April 21, 2005. H.R. 1751 is a comprehensive measure designed
to improve the security and protection of judges, law
enforcement, prosecutors, and other personnel following several
high profile violent attacks that resulted in death or serious
injury.
Federal, State and local judges and law enforcement have
suffered from rising threats and deadly attacks against
courthouse personnel- prosecutors, witnesses, defense counsel
and others have also come under more regular and violent
assault. According to the Administrative Office of United
States Courts, there are almost 700 threats a year made against
Federal judges, and in numerous cases Federal judges have had
security details assigned to them for fear of attack by members
of terrorist associates, violent gangs, drug organizations and
disgruntled litigants.
At the State and local level, there is no comprehensive
data or incident reports. Two States, Missouri and
Massachusetts, have gathered data that shows an increasing
trend of violence against courts and court personnel. For the
years 2003 and 2004, in Massachusetts, assaults and
disturbances, medical emergencies, and weapons/contraband
seized constituted the majority of incidents reported (72.12
percent) for the 2004 reporting period. There were 295 assaults
and 30 threats against judges or courthouse employees. In
Missouri, for 2001, 74 percent of reporting courts indicated
that their court had experienced at least one security incident
during the reporting period. Of the five most frequent types of
security incidents, four involved a level of violence or threat
of violence.
The legislation enhances criminal penalties for assaults
and killings of Federal, State and local judges, witnesses, law
enforcement officers, courthouse personnel and their family
members; provides grants to State and local courts to improve
security services, and improves the ability of the U.S.
Marshals to protect the Federal judiciary.
The bill also prohibits public disclosure--on the Internet
and other public sources--of personal information about judges,
law enforcement, victims and witnesses, to protect Federal
judges and prosecutors from organized efforts to harass and
intimidate them through false filings of liens and other
encumbrances against personal property, and improves
coordination between the U.S. Marshals and Federal judges. H.R.
1751 also contains security measures for Federal prosecutors
handling dangerous trials against terrorists, drug
organizations and other organized crime figures.
Legislative History.--On April 21, 2005, H.R. 1751 was
referred to the Committee on the Judiciary. On April 26, it was
referred to the Subcommittee on Crime, Terrorism, and Homeland
Security. A legislative hearing on H.R. 1751 was held on April
26, 2005. Testimony was received from four witnesses: Judge
Jane Roth, Chairwoman of Judicial Conference Committee on
Facilities; Judge Cynthia Kent, 114th Judicial District of
Texas; United States Attorney Paul McNulty, Eastern District of
Virginia; and United States Marshal John Clark, Eastern
District of Virginia. On June 30, 2005, the Subcommittee on
Crime, Terrorism, and Homeland Security met in open session and
ordered favorably reported the bill H.R. 1751 as amended by a
voice vote, a quorum being present. On October 27, 2005, the
full committee met in open session and ordered favorably
reported the bill H.R. 1751 as amended by a recorded vote of 26
to 5, a quorum being present. The bill was placed on the Union
Calendar No. 148 on November 7, 2005, and was brought before
the Committee of the Whole on November 9, 2005, where it passed
by the Yeas and Nays 375-45. The following day, H.R. 1751 was
received in the Senate, read twice, and referred to the
Committee on the Judiciary. There have been no further actions
to date.
H.R. 2318, the ``Protection Against Sexual Exploitation of Children Act
of 2005''
Summary.--Congressman Mark Green (R-WI) introduced the
Protection Against Sexual Exploitation of Children Act of 2005
on May 12, 2005. H.R. 2318 amends the Federal criminal code to
increase mandatory minimum terms of imprisonment for sexual
offenses against children, including: (1) aggravated sexual
abuse of children; (2) abusive sexual contact with children
under age 12; (3) sexual abuse of children under age 12
resulting in death; (4) sexual exploitation of children; (5)
activities relating to material involving the sexual
exploitation of children; (6) activities relating to material
constituting or containing child pornography; (7) using
misleading domain names to direct children to harmful material
on the Internet; and (8) production of sexually explicit
depictions of children; and (9) conduct relating to child
prostitution.
H.R. 2318 also includes the definition of a ``Federal sex
offense'' for purposes of provisions regarding mandatory life
imprisonment for repeat sex offenses against children.
Legislative History.--On May 12, 2005, H.R. 2318 was
referred to the Committee on the Judiciary. On June 3, it was
referred to the Subcommittee on Crime, Terrorism, and Homeland
Security, where a legislative hearing was held on June 7.
Similar provisions were included in H.R. 4472, the ``Adam Walsh
Child Protection and Safety Act,'' which was signed into law on
July 27, 2006 (Pub. L. 109-248).
H.R. 2388, the ``Prevention and Deterrence of Crimes Against Children
Act of 2005''
Summary.--Congressman Mark Green (R-WI) introduced the
Prevention and Deterrence of Crimes Against Children Act of
2005 on May 17, 2005. H.R. 2388 rewrites provisions of the
Federal criminal code regarding penalties for crimes against
children to require a person convicted of a Federal crime of
violence against an individual under age 18 to be sentenced to
(1) death or life imprisonment if the crime results in the
death of a person under age 18; (2) life or at least 30 years
imprisonment if the crime is a kidnaping, sexual assault, or
maiming, or results in serious bodily injury; (3) life or at
least 20 years imprisonment if the crime results in bodily
injury; (4) life or at least 15 years imprisonment if a
dangerous weapon was used during and in relation to the crime;
and (5) life or at least ten years imprisonment in any other
case.
H.R. 2388 denies a court, justice, or judge jurisdiction to
consider claims relating to the judgment or sentence in an
application for writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court for a crime
that involved the killing of a person under age 18. The bill is
applicable to pending cases as well as proceedings.
Legislative History.--On May 17, 2005 H.R. 2388 was
referred to the Committee on the Judiciary. On June 3, it was
referred to the Subcommittee on Crime, Terrorism, and Homeland
Security, where a legislative hearing was held on June 7.
Similar provisions were included in H.R. 4472, the ``Adam Walsh
Child Protection and Safety Act,'' which was signed into law on
July 27, 2006 (Pub. L. 109-248).
H.R. 2423, the ``Jacob Wetterling, Megan Nicole Kanka, and Pam Lychner
Sex Offender Registration and Notification Act''
Summary.--Congressman Mark Foley introduced H.R. 2423 on
May 18, 2005. H.R. 2423 repeals existing provisions governing
state registration programs for persons convicted of a criminal
offense against a minor or of a sexually violent offense and
directs the Attorney General to carry out a Jacob Wetterling,
Megan Nicole Kanka, and Pam Lychner Sex Offender Registration
and Notification program under which a ``covered individual''
(an individual convicted of a listed offense against a minor)
shall, for that individual's life, provide to the Attorney
General specified information, including any change of address
and employer. The bill also lists exceptions and sets penalties
for violations.
Legislative History.--On May 18, 2005, H.R. 2423 was
referred to the Committee on the Judiciary. On June 3, it was
referred to the Subcommittee on Crime, Terrorism, and Homeland
Security. The Subcommittee held a hearing on H.R. 2423 on June
9, 2005. Similar provisions were included in H.R. 4472, the
``Adam Walsh Child Protection and Safety Act,'' which was
signed into law on July 27, 2006 (Pub. L. 109-248).
H.R. 2796, the ``DNA Fingerprinting Act of 2005''
Summary.--Congressman Mark Green (R-WI) introduced the DNA
Fingerprinting Act of 2005 on June 8, 2005. H.R. 2796 amends
the DNA Identification Act of 1994 to expand the scope of DNA
samples to be included in the Combined DNA Index System
(CODIS). It repeals exclusions from CODIS of (1) DNA profiles
from arrestees who have not been charged in an indictment or
information with a crime; and (2) DNA samples that are
voluntarily submitted solely for elimination purposes. It also
appeals provisions regarding (1) requirements for expungement
of DNA analysis from CODIS in cases where the convictions are
overturned; and (2) authority for any person who is authorized
to access CODIS for purposes of including DNA information to
access it to carry out a one-time keyboard search.
Additionally, this bill amends the DNA Analysis Backlog
Elimination Act of 2000 to authorize the Attorney General to
(1) collect DNA samples from individuals who are arrested or
detained under U.S. authority; (2) delegate this function
within the Department of Justice; and (3) authorize and direct
any other U.S. agency that arrests or detains individuals or
supervises individuals facing charges to carry out any function
and exercise any power of the Attorney General.
Legislative History.--On June 8, 2005, H.R. 2796 was
referred to the Committee on the Judiciary and then to the
Subcommittee on Crime, Terrorism, and Homeland Security. A
legislative hearing was held on June 9, 2005. Similar
provisions were included in H.R. 4472, the ``Adam Walsh Child
Protection and Safety Act,'' which was signed into law on July
27, 2006 (Pub. L. 109-248).
H.R. 2797, the ``Amie Zyla Act of 2005''
Summary.--Congressman Mark Green (R-WI) introduced the Amie
Zyla Act of 2005 on June 8, 2005. H.R. 2797 amends the Jacob
Wetterling Crimes Against Children and Sexually Violent
Offender Registration Act to extend registration requirements
to any person adjudicated as a juvenile delinquent for conduct
that would be an offense requiring registration if committed by
an adult.
Legislative History.--On June 8, 2005, H.R. 2797 was
referred to the Committee on the Judiciary and then to the
Subcommittee on Crime, Terrorism, and Homeland Security. A
legislative hearing was held on June 9. Similar provisions were
included in H.R. 4472, the ``Adam Walsh Child Protection and
Safety Act,'' which was signed into law on July 27, 2006 (Pub.
L. 109-248).
H.R. 2965, the ``Federal Prison Industries Competition in Contracting
Act of 2006''
Summary.--The Federal Bureau of Prisons (BOP) is
responsible for the custody and care of more than 181,000
Federal offenders. Approximately 85 percent of these inmates
are confined in Bureau-operated correctional facilities or
detention centers. Prisoners who are physically able to work
must labor in some capacity five days a week. The Federal
Prison Industries (FPI), a government corporation that operates
the BOP's correctional program, employs inmates in the Federal
prison population to manufacture goods for and provide services
to Federal agencies. About 20 percent of inmates work in FPI
factories. They generally work in factory operations, such as
metals, furniture, electronics, textiles, and graphic arts. FPI
work assignments pay from 23 cents to $1.15 per hour.
Although FPI is precluded from selling its goods in the
commercial market under 18 U.S.C. section 1761, the BOP has
taken the position that the language prohibiting interstate
transport of goods does not prohibit it from selling services
in the commercial market. Many private companies and small
businesses have trouble competing with the advantages the
prison industry enjoys, such as a guaranteed market for its
products and reduced costs for labor and capital.
In FY 2004, FPI operated 102 factories in 71 correctional
facilities marketing products and services in approximately 150
broad classes under the trade name UNICOR. In FY 1998, FPI had
total sales of $534.2 million and employed 20,200 inmates
(18.3%). In FY 2004 employed 19,337 inmates, with a total sales
of $802.7 million and a profit of $120.4 million. Federal
agencies are required by law, under 18 U.S.C. Sec. 4124, to
purchase FPI products if a product is available that meets the
agencies' requirements and does not exceed current market
prices. This provision in the law, deemed ``mandatory source
preference,'' does not specify how the current market price
should be determined. The General Accounting Office (GAO)
concluded in a 1998 report to Congress that ``the only
limitation on FPI's price is that it may not exceed the upper
end of the current market price range.''
The ``mandatory source preference'' given FPI is viewed as
an exception to the Federal Acquisition Regulation standards
established for a ``fair and reasonable price.'' Thus, agencies
are required to purchase products from FPI regardless of
whether FPI provides the agency with a price it considers
reasonable or factually supports the price it offered. Recent
changes in the law at 10 U.S.C. Sec. 2410n allow agency
contracting officers to determine if a product offered by FPI
is ``comparable to products available from the private sector
that best meet the Department's needs in terms of price,
quality, and time of delivery.'' These changes do not eliminate
the ``mandatory source preference''. If a contracting officer
finds that FPI's offered product is not comparable, then the
purchase is to be made using competitive procedures. There is
no need to obtain a so-called ``waiver'' from FPI prior to
making the purchase. Section 2410n only requires that FPI be
accorded the same right to compete as any other eligible
offeror, but does not grant to FPI any preferential status in
the competitive process.
H.R. 2965 would fundamentally alter the 1934 authorizing
statute of Federal Prison Industries (``FPI'') requiring that
FPI compete for its business opportunities and no longer be
able to take them on a sole-source basis. Currently, all
Federal agencies must purchase products offered by FPI, which
is commonly referred as FPI's ``mandatory source'' status. FPI,
rather than the buying agency, determines if FPI's offered
product and delivery schedule meets the mission needs of the
buying agency. FPI, rather than the buying agency, determines
the reasonableness of FPI's offered price.
This bill would gradually phase out the exclusive right of
FPI, deemed ``mandatory source,'' to sell goods on an
exclusively non-competitive basis to federal agencies by
October 1, 2011. The bill also changes the manner in which FPI
sells its products and services to the various Federal
departments and agencies. During the phase-out period, FPI
would be required to provide the agencies with a product that
meets its needs at a ``fair and reasonable price'' in a timely
manner.
Today, FPI's offered price meets the ``current market''
price standard if it does not exceed the highest price offered
to the Government for a comparable item, even if no actual
sales have been made at that price. Under the Federal
Acquisition Regulations (FAR), a federal manager must obtain
FPI's unilateral permission to even solicit competitive offers
from the private sector in an effort to obtain ``best value''
for the taxpayer dollars entrusted to such manager's care.
This legislation establishes new competitive procedures for
government procurement of products or services that are offered
for sale by FPI. H.R. 2965 requires that FPI sales to its
Federal agency customers be made through contracts won on a
competitive basis, for both products and services. Like other
suppliers to the Federal Government, FPI would be required to
fulfill its contractual obligations in a timely manner.
To enable FPI to adjust to the requirement that it obtain
contracts on a competitive basis, H.R. 2965 provides FPI with a
five-year transitional period to adjust from its sole-source
dealings with its currently captive Federal agency customers.
Under this phase-out authority, Federal agencies could continue
to contract with FPI on a noncompetitive basis through October
1, 2011, subject to annually declining caps on the use of the
preferential contracting authority. During the phase-out
period, FPI would be required to provide a buying agency with a
product that meets the buying agency's needs, when needed, at a
``fair and reasonable price.''
To assure that the loss of a contract by FPI does not
endanger the safety of a Federal Correctional Institution
(FCI), H.R. 2965 contains a provision that permits the Attorney
General to authorize a sole source contract award to prevent
idleness ``that could reasonably be expected to significantly
endanger the safe and effective administration'' of the FPI at
which the work required by the contract is scheduled to be
performed. To prevent abuse of this sole-source authority by
FPI, the provision requires that the Attorney General's
decision to authorize the sole source contract award be
supported by findings by the FCI's warden.
H.R. 2965 does not alter a broad array of advantages that
FPI enjoys with respect to private sector firms. The great
majority of inmates working for FPI will continue to be paid at
rates below the minimum wage. FPI factory space is provided by
the host FCI, and is constructed at taxpayer expense.
Similarly, FPI receives its utilities from the host FCI. As a
Government corporation, FPI may receive industrial equipment
excess without cost from other Departments and agencies,
including the substantial quantities of industrial equipment
returned to the Department of Defense by its contractors. FPI
has had a $20 million line-of-credit from the U.S. Treasury on
an interest-free basis since 1988.
In addition to requiring that FPI compete for its Federal
agency sales, H.R. 2965 improves the process by which FPI's
Board of Directors considers proposals from FPI's career
management staff to authorize production expansion. For the
first time, it extends the public participation and Board
approval procedures to expansion proposals relating to services
as well as expansion proposals relating to products.
The legislation also substantially modifies the structure
of FPI's Board of Directors. Currently, the FPI Board of
Directors is composed of six-members, appointed by the
President. H.R. 2965 replaces the current Board with an eleven-
member Board, with three members representing business, three
members representing labor, one member with special expertise
in inmate rehabilitation techniques, one member representing
victims of crime, one member representing inmate workers, and
two additional members ``whose background and expertise the
President deems appropriate.''
The legislation includes provisions that substantially
expand alternative rehabilitative opportunities for more
Federal inmates to better prepare them for a successful return
to society. The legislation also seeks to provide increased
opportunities to participate in programs providing fundamental
remedial education as well as modern hands-on vocational and
apprenticeship training. Additionally, the legislation
authorizes alternative inmate work opportunities in support of
non-profit, community service organizations. For example, FPI
workers can provide services to build or recondition for
donation to nonprofit organizations to assist low income
individuals who would have difficulty purchasing these products
on their own.
H.R. 2965 also includes a demonstration project to test the
cognitive abilities and perceptual skills of Federal inmates to
maximize rehabilitation efforts and reduce recidivism. Finally,
H.R. 2965 adds a new Section 13 ``Transitional Personnel
Management Authority'' to provide some relief to correctional
officers, whose staff positions are no longer funded from
appropriations to the Federal Bureau of Prisons, but through
non-appropriated funds, completely dependent upon revenue from
FPI ``sales.''
The legislation, as amended by the Committee, includes
provisions, which were developed over a six-month period with
representatives of the Attorney General. All of the provisions
are acceptable to the broad array of business organizations and
labor unions participating in the Federal Prison Industries
Competition in Contracting Coalition. The changes are additions
to the text of H.R. 2965 as introduced.
The legislation, as amended, creates a new Work-Based
Employment Preparation Program under which private-sector firms
can enter into agreements with FPI to prepare inmates for re-
entry through real-world work coupled with structured
apprenticeship-like training. The byproducts of these work-
based training programs, both the production of products or the
furnishing of services may be sold in the commercial market. To
avoid unfair competition with non-inmate workers, and the firms
that employ them, the products of the Work-Based Employment
Training Program would be restricted to products or services
for which there is no domestic production. The Secretary of
Labor, in consultation with the Attorney General, is directed
to issue an inmate training wage under the authority of the
Fair Labor Standards Act, which would be less than the Federal
Minimum Wage. H.R. 2965 includes a sense of Congress that the
wage set by the Secretary should be no less than 50% of the
Federal minimum wage under the Federal Labor Standards Act.
H.R. 2965, as amended, is designed to further facilitate a
successful transition by FPI from simply taking contracts
pursuant to its status as a mandatory source and winning
contracts competitively. The legislation adopted by the
Committee includes a provision that would allow FPI to be
listed as providing goods and services comparable to private-
sector firms holding contracts under Multiple Award Schedules
(MAS) Program administered by the General Services
Administration, although Government corporations are ineligible
to be a MAS Program contract holders. This will enable FPI to
keep its offering clearly in the view of the Federal buyer.
H.R. 2965 requires Federal buyers to solicit offers from
FPI, an advantage not enjoyed by private-sector firms who must
find their Federal contract opportunities. The legislation, as
amended, also requires that a solicitation shal be made to FPI
first if the product or service to be acquired would otherwise
be furnished by a contractor outside the United States.
The legislation, as amended, also gives FPI authority to
file agency bid protests, if FPI feels the Federal buyer has
not evaluated fairly FPI's offer. No other Government
corporation has this authority. FPI is authorized to perform a
Government contract won competitively although the FPI Board of
Directors has not authorized FPI to produce such a new product
or service. Additionally, under the legislation as adopted the
unique costs of dealing with an inmate population may be
considered in offers for cost-reimbursement contracts by FPI.
During the five-year period of transition to competition,
the legislation adopted by the Committee permits the FPI Board
of Directors to allow FPI to take more than a reasonable share
of the market for an authorized product or service, if needed
to maintain inmate employment. To avoid an displacement of
current inmate workers, H.R. 2965, as amended, ``grandfathers''
all of FPI's current agreements with private-sector firms that
result in the introduction of inmate-furnished services in the
commercial market. Thereafter, the firms can apply to
participate in the Work-based Employment Preparation Program.
H.R. 2965, as introduced, already grandfathers state or local
prison industry programs to complete their existing agreements.
Thereafter, they can continue their programs under the PIE
(Prison Industry Enhancement) Program, which has provided entry
into the commercial market for state or local prison-made
products or inmate-furnished services, since 1979.
Legislative History.--This legislation was introduced on
June 17, 2005, and referred to the Committee on Judiciary
Subcommittee on Crime, Terrorism, and Homeland Security. A
hearing on the legislation was held at the Subcommittee on July
1, 2005. Testimony was received from four witnesses,
representing four organizations, with additional material
submitted by numerous individuals and organizations. On July
12, 2006, the Committee met in open session and ordered
favorably reported the bill H.R. 2965, with an amendment, by
voice vote, a quorum being present. On September 14, 2006, the
House passed H.R. 2965 by a vote of 362-57.
H.R. 3035, the ``Streamlined Procedures Act of 2005''
Summary.--The Streamlined Procedures Act of 2005 was
introduced by Congressman Daniel Lungren (R-CA) on June 22,
2005, for the purpose of amending the Federal judicial code to
revise the law and procedures for habeas corpus petitions. It
eliminates delays and unnecessary litigation, adopting a
simple, clear standard for allowing all claims to either go
forward in Federal court or be dismissed, without the need for
additional years of litigation in State court.
H.R. 3035 denies or restricts the jurisdiction of Federal
courts to hear habeas corpus petitions that: (1) have been
procedurally barred in a state court; (2) are based upon errors
in sentences or sentencing ruled as harmless error by a state
court; (3) pertain to capital cases; or (4) challenge the
exercise of a States's executive clemency or pardon power.
It amends deadlines for filing appeals to Federal courts of
State habeas corpus decisions and limits the ability of habeas
corpus petitioners to amend petitions or modify or add
additional claims. H.R. 3035 requires requests for financial
support for petitioners in a habeas corpus proceeding to be
decided by a judge other than the judge presiding over such
proceeding. Additionally, it requires any amount of financial
support authorized by a judge to be publicly disclosed.
Legislative History.--H.R. 3035 was referred to the
Committee on the Judiciary on June 22, 2005. On the 27th, it
was referred to the Subcommittee on Crime, Terrorism, and
Homeland Security where legislative hearings were held on June
30th and November 10th. Individuals who submitted testimony for
the first hearing included Mr. Barry Sabin, Chief of the
Counterterrorism Section for the Criminal Division at the U.S.
Department of Justice; The Honorable Joshua K. Marquis,
District Attorney for Clatsop County, Oregon; Mr. Ron
Eisenberg, Deputy District Attorney for Philadelphia,
Pennsylvania; and Mr. Bernard E. Harcourt, Professor of Law and
Faculty Director of Academic Affairs at the University of
Chicago. For the second hearing, the following witnesses
testified before the Subcommittee: Mr. Tom Dolgenos, Chief of
the Federal Litigation Unit in the Philadelphia District
Attorney's Office; Mr. Kent Cattani, Chief Counsel of the
Capital Litigation Section of the Arizona Attorney General's
Office; Ms. Mary Ann Hughes, a crime victim from Chino Hills,
California; and Ms. Ruth Friedman, a solo practitioner in
Washington, DC. There have been no further actions concerning
this bill.
H.R. 3132, the ``Children's Safety Act of 2005''
Summary.--Chairman F. James Sensenbrenner, Jr. introduced
H.R. 3132 on June 30, 2005. H.R. 3132 is a comprehensive bill
to address the growing epidemic of sexual violence against
children through renewing and strengthening existing laws
intended to protect children.
Statistics show that 1 in 5 girls and 1 in 10 boys are
sexually exploited before they reach adulthood, yet less than
35 percent are reported to authorities. This problem is
exacerbated by the number of children who are solicited
online--according to the Department of Justice 1 in 5 children
(10 to 17 years old) receive unwanted sexual solicitations
online. Moreover, sex offenders have significant recidivism
rates. In a 2001 report, The Center for Sex Offender Management
found that sexual offense recidivism rates are underreported
and that the number of subsequent sex offenses revealed through
unofficial sources was 2.4 times higher than the number that
was recorded in official reports. Research using information
generated through polygraph examinations on a sample of
imprisoned sex offenders with fewer than two known victims (on
average), found that these offenders actually had an average of
110 victims and 318 offenses. Another polygraph study found a
sample of imprisoned sex offenders to have extensive criminal
histories, committing sex crimes for an average of 16 years
before being caught.
Recent events have underscored gaps and problems with
existing Federal and state laws, as well as implementation of
sex offender registration and notification programs. There is a
wide disparity among the state programs in the registration
requirements and notification obligations for sex offenders.
Given the transient nature of sex offenders and the inability
of the States to track these offenders, it is conservatively
estimated that approximately 20 percent of 400,000 sex
offenders are ``lost'' under state sex offender registry
programs. In addition, there is a disparity among state
programs as to the existence of Internet availability of
relevant sex offender information, and the specific types of
information included in such web sites. Recently, the Justice
Department announced that it has begun implementing a public,
national sex offender registry, linking together the State
registries into one national website, starting with the linking
of 22 State Internet web sites for search purposes.
H.R. 3132 includes much-needed reforms of the Sex Offender
and Registration program by (1) expanding the coverage of
registration and notification requirements to a larger number
of sex offenders; (2) increasing the duration of registration
requirements for sex offenders; (3) requiring States to provide
Internet availability of sex offender information; (4) ensuring
timely registration by sex offenders and verification; (5)
requiring sex offenders to register in person and on a regular
basis, and to provide detailed personal information whenever
they move to a new area to live, attend school or work; (6)
requiring a State to notify the Attorney General, law
enforcement agencies, schools, housing agencies and
development, background check agencies, social service agencies
and volunteer organizations in the area where a sex offender
may live, work or attend school; (7) authorizing demonstration
programs for new electronic monitoring programs (e.g. anklets
and GPS monitoring which will require examination of multi-
jurisdictional monitoring procedures); (8) creating a new
National Sex Offender Registry; (9) creating a new Federal
crime punishable by a five year mandatory minimum when a sex
offender fails to register; and (10) authorizing the U.S.
Marshals to apprehend sex offenders who fail to register and
increases grants to States to apprehend sex offenders who are
in violation of the registration requirements.
The bill also revises laws relating to the use of DNA
evidence, increases penalties for violent crimes committed
against children and sexual exploitation of children;
streamlines habeas review of State death sentences imposed
against child killers; and protects foster children by: (1)
requiring States to complete background checks using national
criminal history databases before approving a foster or
adoptive parent placement, and to check child abuse registries;
(2) authorizing child welfare agencies to obtain read-only
access to national criminal history databases; (3) requiring
sex offenders to submit to searches as a condition of
supervised release or probation; and (4) establishing
procedures for civil commitment of Federal sex offenders who
are dangerous to others because of serious mental illness,
abnormality or disorder.
Legislative History.--On June 30, 2005, H.R. 3132 was
referred to the Committee on the Judiciary. On July 27, it was
referred to the Subcommittee on Crime, Terrorism, and Homeland
Security. The Committee's Subcommittee on Crime, Terrorism and
Homeland Security held a series of three hearings on child
crime issues related to H.R. 3132, on June 7 and 9, 2005. The
first hearing focused on Rep. Mark Green's legislative
proposals, H.R. 2138, ``The Prevention and Deterrence of
Violence Against Children's Act,'' and H.R. 2188, ``The
Protection Against Sexual Exploitation of Children Act.''
Testimony was received from four witnesses, representing the
United States Department of Justice, the Attorney General from
the State of Florida, Ms. Carol Fornoff, the mother of Christy
Ann Fornoff, who was murdered in 1984, and a representative
from the Federal Public Defender in Montana. The second
hearing, on June 9, 2005, focused on legislative proposals
relating to child safety. Testimony was received from the
Honorable Mark Foley, from the 16th Congressional District in
the State of Florida, the Honorable Ted Poe, from the 2nd
Congressional District in the State of Texas, the Honorable
Ginny Brown-Waite, from the 5th Congressional District in the
State of Florida, and the Honorable Earl Pomeroy, who serves At
Large in the State of North Dakota. The third hearing, which
took place later that same day, focused on protecting children
from sexual predators and violent criminals. Testimony was
received from a representative from the United States
Department of Justice; Ernie Allen, President of the National
Center for Missing and Exploited Children; Amie Zyla, a child
victim of sexual assault by a convicted sex offender; and Dr.
Fred Berlin, Associate Professor in the Department of
Psychiatry at the Johns Hopkins University School of Medicine.
On June 30, 2005, H.R. 3132 was referred to the Committee on
the Judiciary, where on July 27 it was both marked up and
ordered to be reported by the Yeas and Nays: 22-4. The bill was
brought before the Committee of the Whole House on September
14, where it passed by the Yeas and Nays: 371-52. The following
day, H.R. 3132 was received in the Senate, read twice, and
referred to the Committee on the Judiciary. There have been no
further actions to date.
H.R. 3889, the ``Methamphetamine Epidemic Elimination Act''
Summary.--Congressman Mark E. Souder introduced H.R. 3889
on September 22, 2005. H.R. 3889 was introduced to provide
better management of legal precursor chemicals that are
frequently diverted for the production of methamphetamine and
to provide tools to Federal, state, and local law enforcement.
Methamphetamine is highly addictive and takes a tremendous
physical and mental toll on an addict.
Production of methamphetamine can occur on a large or small
scale. A key component of the narcotic is a common cold remedy,
pseudoephedrine (PSE). Diversion of PSE for the purpose of
producing methamphetamine occurs from any point from the
manufacturing and wholesale of the drug all the way to the
point of purchase by a consumer. Because methamphetamine can be
made in large or small quantities, producers range from large
international drug cartels operating out of ``superlabs'' to
small ``mom and pop'' producers that can operate in an area as
small as an automobile trunk.
The amount of money needed to produce methamphetamine is
minimal. Most of the ingredients are easily obtainable and
producers frequently steal those ingredients that they cannot
afford. Addicts will frequently band together in collectives to
pool ingredients in order to ensure that there are enough to
produce the drug. Little knowledge is needed to make the drug,
though the process is highly volatile and produces large
quantities of toxic byproducts that are toxic to humans and the
environment.
Because of the diverse sources of methamphetamine, any
strategy to try and stem the production of the drug has to
address both the large-scale production of the drug by
established cartels and the small-scale production by small
groups of users or individuals. H.R. 3889 is designed to
provide a multifaceted solution to these problems by (1)
placing restrictions on the amount of the precursor chemical
PSE that can be sold at retail in order to stem methamphetamine
production by smaller producers, (2) authorizing the
establishment of import and manufacturing quotas, (3)
increasing penalties for trafficking precursor chemicals with
the intent to manufacture, and (4) modifying the amount of
methamphetamine needed for the application of ``kingpin''
enhancements.
Legislative History.--On September 26, 2005, H.R. 3889 was
referred to the Subcommittee on Crime, Terrorism, and Homeland
Security. A legislative hearing was held on September 27, with
the following witnesses testifying before the Subcommittee: The
Honorable Mark Souder, Member of Congress, 3rd District,
Indiana; the Honorable Mark Kennedy, Member of Congress, 6th
District, Minnesota; Mr. Joseph T. Rannazzisi, Deputy Chief,
Office of Enforcement Operations, U.S. Drug Enforcement
Administration; and Dr. Barry M. Lester, Professor of
Psychiatry & Human Behavior and Pediatrics, Brown University
Medical School. A Subcommittee markup session was held for H.R.
3889 on November 3, 2005, where it was forwarded to Full
Committee by the Yeas and Nays: 8-2. The bill was reported at a
Full Committee markup on November 9 by the Yeas and Nays: 31-0.
H.R. 3889 was placed on Union Calendar No. 167 on November 17,
and was later included in H.R. 3199, the USA PATRIOT
Improvement and Reauthorization Act of 2005.
H.R. 4132 the ``Law Enforcement Cooperation Act of 2006''
Summary.--Congressman William Delahunt (D-MA) introduced
H.R. 4132 on October 25, 2005. H.R. 4132 amends the Federal
criminal code to prescribe penalties to be imposed on any
officer or employee of the Federal Bureau of Investigation
(FBI) who obtains information that a confidential informant or
other individual has committed a serious violent felony (as
defined in section 3559 of title 18) that violates State or
local law and who knowingly and intentionally fails to promptly
inform the chief State law enforcement officer and local
prosecuting official. An offense under this section is
punishable by a fine or imprisonment up to five years, or both.
The FBI is required to notify the Attorney General that an
officer or employee has provided information under this
section.
In September 2005, the Department of Justice Office of the
Inspector General (OIG) released a report entitled, ``The
Federal Bureau of Investigation's Compliance with the Attorney
General's Investigative Guidelines'' (the Report). OIG examined
four areas of FBI's compliance with the Attorney General's
Investigative Guidelines (Guidelines). The four areas examined
were: Confidential Informants; Undercover Operations; General
Crimes, Racketeering Enterprise and Terrorism Enterprise
Investigations; and Consensual Monitoring. In the Report, the
OIG reviewed the FBI's implementation of the revised
Investigative Guidelines with two main objectives: (1) to
assess the FBI's compliance with the revised guidelines; and
(2) to evaluate the procedures that the FBI employed to ensure
that the revised Guidelines were properly implemented. The most
significant problems cited were failures to comply with the
Confidential Informant Guidelines. In fact, the OIG identified
one or more Guideline violations in 87 percent of the
confidential informant files examined.
The Report issued by the OIG was the culmination of an
exhaustive review regarding various issues of compliance with
the Guidelines. The Guidelines were adopted in 1976, with
revisions added periodically at the behest of the then-Attorney
General, and were adopted in place of statutory recourse for
the FBI and other Federal Law Enforcement Agencies. The latest
revision of the Attorney General's Guidelines, the Ashcroft
Guidelines, were adopted without the customary Congressional
consultation. In the past the Attorney General and FBI
Leadership have uniformly agreed that the Guidelines were
necessary and desirable, and that the FBI's adherence to the
Guidelines were the reason why the FBI should not be subjected
to a general legislative charter or to statutory control.
However, failure to adequately comply with the Guidelines
brings into question whether legislative alternatives may be
necessary.
Although the Report looked at the general compliance by the
FBI with several portions of the Guidelines, the relevant
portion for the purposes of this legislation is that addressing
the Bureau's effectiveness regarding Agent relationships with
Confidential Informants (CIs), an area that the Report
identified as the most problematic.
Twelve FBI offices of various sizes were selected and a
random sampling of between 9 to 11 CI files from each office
(for a total of 120) were selected in order to ascertain
compliance levels. In addition, various personnel from the FBI
and U.S. Attorney's offices were interviewed to supplement and
explain the results of the file analysis. The OIG determined
that there existed at least one compliance error in 87 percent
of the files examined. As an explanation for this finding,
personnel from field offices, as well as personnel from FBI
Headquarters, indicated that the Guidelines are too cumbersome
and, as such, discourage agents from adhering to the
Guidelines. Similarly, a majority of the Special Agents in
Charge (SAC) indicated that while they believed the Guidelines
are realistic, the accompanying paperwork is too cumbersome.
These complaints about and failure to adhere to the Guidelines
is an apparent departure from previous feedback about the
priority placed on adherence to the Guidelines, as indicated by
former FBI Director William Webster who stated that the
Guidelines were ``scrupulously observed'' in regard to handling
informants.
Furthermore, the OIG found significant problems in the
FBI's compliance with the Guidelines occurring primarily in the
areas of: suitability reviews; cautioning of informants about
the limits of their activities; the authorization of otherwise
illegal activity; documentation and notice of unauthorized
illegal activity by informants; and the deactivation of
informants.
Legislative History.--On July 12, 2006, the Judiciary
Committee held a legislative markup, reporting the bill
favorably as amended by voice vote (H. Rept. 109-564). No
further action was taken in the 109th Congress.
H.R. 4239, the ``Animal Enterprise Terrorism Act''
Summary.--In recent years, there has been an increase in
the number and severity of crimes of violence and intimidation
animal rights activists groups have been employing to disrupt
the business of anyone engaged in any enterprise that uses or
sells animals or animal products. There has also been a trend
by these groups to attack not only employees for companies
doing such research, but also those with any type of remote
link to such research. These activities have been used to
target employees of private companies, banks, underwriters,
insurance companies, investors, university research facilities
and even the New York Stock Exchange.
Tactics employed by the fringe activists include
threatening letters, emails and phone calls; repeated organized
protests at employees homes; and blanketing home neighborhoods
with flyers referring to a specific company employee or
researcher as a puppy killer or pedophile. Activists have been
tied to phone calls in the middle of the night from the
``morgue'' claiming a relative has been killed and the employee
should come identify the body immediately. Some of the more
violent activities include acts of arson; acid poured on cars
at peoples homes; sending razor blades in the mail; and spray
painting defamatory language on people's homes. In the United
Kingdom, where many of these groups originate, activists have
been linked to the beating of a company CEO; explosives devices
sent to the home of employees; and pipe bombs attached to
employees cars. Underground networks of these groups advocate
for these types of activities and applaud individuals who
employ these tactics.
H.R. 4239 would expand the reach of the Federal criminal
laws to specifically address the use of force, violence or
threats against not only the animal enterprise organizations,
but also those who do business with them. Specifically, the
legislation would prohibit the intentional damaging of property
of a person or entity having a connection to, relationship
with, or transactions with an animal enterprise and make it a
criminal act to intentionally place a person in reasonable fear
of death or serious bodily injury to that person or their
family because of their relationship with an animal enterprise.
The legislation further provides for increased penalties for
these activities and makes crimes under 18 U.S.C. 43 eligible
for an application for an order allowing interception of wire
or oral communications under 18 U.S.C. 2516.
Finally, the legislation expands the definition of
``economic damage'' for purposes of this section to include
loss of property, the costs incurred because of a lost
experiment, and lost profits. It also includes a definition of
the term ``economic disruption,'' to mean losses or increased
costs resulting from threats, acts of violence, property
damage, trespass, harassment, or intimidation against a person
or entity on account of their relationship with an animal
enterprise. This does not include lawful boycott.
Since the bill has been introduced, the Committee has been
approached by a couple of groups with concerns about ensuring
First Amendment protections are included for lawful protests,
boycotts, and other activities. The legislation was not
intended to infringe on these rights in any way. Accordingly, a
manager's amendment clarifying that those rights will continue
to be protected was drafted.
The amendment in the nature of a substitute addresses
concerns regarding lawful protests that were raised during the
hearing and by outside groups. The amendment in the nature of a
substitute includes a rule of construction to that clarifies
that nothing in the bill shall be construed to prohibit any
expressive conduct protected by the First Amendment.
Additionally, the amendment ensures that mere civil
disobedience activities that are nonetheless illegal shall not
be prosecuted as a felony; instead these activities will be
treated as misdemeanors.
Legislative History.--H.R. 4239 was introduced on November
4, 2005. A hearing was held at the Subcommittee on Crime,
Terrorism, and Homeland Security on May 23, 2006. No further
actions have occurred.
H.R. 4472, the ``Adam Walsh Child Protection and Safety Act of 2006''
Summary.--Chairman F. James Sensenbrenner, Jr. introduced
H.R. 4472 on December 8, 2005. The legislation was a
compilation of several violent crime reduction bills including
H.R. 1751, the ``Secure Access to Justice and Court Security
Act of 2005''; H.R. 3132, the ``Children's Safety Act of
2005''; and H.R. 5749, the ``Internet Stopping Adults
Facilitating the Exploitation of Today's Youth (SAFETY) Act.''
Legislative History.--On December 8, 2005, H.R. 4472 was
referred to the Committee on the Judiciary. The Committee's
Subcommittee on Crime, Terrorism and Homeland Security held a
series of three hearings on child crime issues related to H.R.
4472, on April 5 and 26, and June 7 and 9, 2005. On March 8,
2006, H.R. 4472 was considered under suspension of the rules
and passed by voice vote. On July 20, the bill was amended and
passed by the Senate. The House voted to suspend the rules and
agree to the Senate amendments by voice vote on July 25. The
President signed H.R. 4472 on July 27, and it became Public Law
109-248.
H.R. 4703, ``To provide meaningful civil remedies for victims of the
sexual exploitation of children''
Summary.--Congressman Phil Gingrey (R-GA) introduced H.R.
4703 on February 7, 2006. H.R. 4703 amends section 2255 of
Title 18, providing a Federal private right of action to
victims of Federal sexual offenses, to clarify that victims of
sexual offenses may sue under this section either as a minor or
as an adult. The bill increases from $50,000 to $150,000 the
minimum amount of damages a victim shall be deemed to have
sustained.
Legislative History.--H.R. 4703 was included in H.R. 4472,
the ``Adam Walsh Child Protection and Safety Act of 2006'',
which passed the House on July 25, 2006, and became Public Law
109-248 on July 27, 2006.
H.R. 4777, the ``Internet Gambling Prohibition Act''
Summary.--Congressman Bob Goodlatte (R-VA) introduced H.R.
4777 on February 16, 2006. H.R. 4777 clarifies the Wire Act to
prohibit not only sports betting, but traditional gambling,
such as online poker, blackjack and roulette. The bill also
updates the Wire Act, passed in 1961, to cover more Internet
technologies, such as wireless infrastructures that
increasingly make up the Internet. Finally, the bill outlaws
the transmission of electronic funds to pay for gambling bets;
grants Federal, state and local law enforcement the ability to
seek injunctions to prevent the transmission of those funds;
and increases the penalties for all violations of the Wire Act
from a maximum of two years to a maximum of five years.
Gambling on the Internet has increasingly become an
extremely lucrative business. The explosive growth of this
industry, has seen an increase both in gambling websites
available, and in industry revenues. Internet gambling is now
estimated to be a $12 billion industry, with approximately $6
billion coming from bettors based in the U.S. It has been
reported that there are as many as 2,300 gambling sites.
Legislative History.--On April 5, 2006, the Subcommittee on
Crime, Terrorism and Homeland Security conducted a legislative
hearing on H.R. 4777. Testifying before the Subcommittee were
(1) the Honorable Bob Goodlatte, 6th Congressional District of
Virginia, Member of Congress; (2) Mr. Bruce Ohr, Chief,
Organized Crime and Racketeering Section, DOJ; (3) Mr. John
Kindt, Professor, University of Illinois; (4) Mr. Sam
Vallandingham, Vice President, the First State Bank, West
Virginia. The Subcommittee, via voice vote, reported the bill
favorably to the full committee on May 3, 2006. On Thursday,
May 25, 2006, the Committee on the Judiciary conducted a markup
on H.R. 4777. Thereafter, H.R. 4777 was merged with and into
H.R. 4411 the Unlawful Internet Gambling Enforcement Act of
2006, introduced by Congressman Jim Leach (R-IA). On July 11,
2006, the merged version of H.R. 4411 which contained the
portions of H.R. 4777 as reported by the Committee on the
Judiciary, passed the House 317-93.
H.R. 4894, the ``Schools Safely Acquiring Faculty Excellence (SAFE) Act
of 2006''
Summary.--Congressman Jon Porter (R-NV) introduced H.R.
4894 on March 7, 2006. H.R. 4894 directs the Attorney General
to conduct fingerprint-based background checks through the
national crime information databases at the request of schools
or educational agencies for employees, prospective employees,
and volunteers who interact with children.
Despite improvements in hiring practices of prospective
teachers, including widespread use of background checks, people
with criminal histories still fall through the cracks. Today,
all states require some form of background check for school
employees. However, the type of background check varies from
state to state and even among school districts. Some states
require only a state police check while others require both a
state and an FBI check. Who is checked and how often also
varies.
In 1998, Congress adopted the National Crime Prevention and
Privacy Compact Act establishing an infrastructure by which
states can exchange criminal records for non-criminal justice
purposes such as background checks of school employees.
However, to date, only twenty-five states and the FBI have
ratified the Compact.
The FBI's Integrated Automated Fingerprint Identification
System (IAFIS) is a national fingerprint and criminal history
system. The Interstate Identification Index (III) segment of
IAFIS is the national system designed to provide automated
criminal history information to participating states. Forty
states currently participate in the III program.
Two flaws persist with current background check systems.
First, not all state criminal records appear under these
systems and second, the current process is cumbersome and does
not provide a timely response. Use of the current systems is
particularly cumbersome in fast-growing school districts that
are under tremendous pressure to quickly fill additional
teaching positions. H.R. 4894 provides states direct access to
federal databases for background checks of current and
prospective school employees and volunteers.
The Schools SAFE Act included in H.R. 4472 additionally
authorizes the Attorney General to conduct fingerprint-based
background checks upon request from state child welfare
agencies for prospective foster or adoptive parents or for
purposes of investigating incidents of abuse or neglect of a
minor.
Legislative History.--On May 24, 2006, the Judiciary
Committee held a legislative markup, reporting the bill
favorably as amended by voice vote (H. Rept. 109-497). H.R.
4894 passed the House on June 13, 2006, and was included in
H.R. 4472, the ``Adam Walsh Child Protection and Safety Act of
2006'', which passed the House on July 25, 2006, and became
Public Law 109-248 on July 27, 2006.
H.R. 5005 the ``Firearms Corrections and Improvements Act''
Summary.--Congressman Lamar Smith (R-TX) introduced H.R.
5005 on March 16, 2006. H.R. 5005 updates and clarifies various
sections of the Gun Control Act, 18. U.S.C. Ch. 44. The bill
has generally received wide support from the BATFE; the
Department of Justice, the Fraternal Order of Police, and the
National Rifle Association. For the most part, H.R. 5005
implements a number of low-controversy ``house-keeping''
changes to the Gun Control Act. However, mayors from the
nation's large cities voiced opposition to Sections 7 regarding
the dual reporting requirement of multiple handgun sales, and
Section 9 regarding trace data. Proponents of Sections 7 and 9
argue that those sections are necessary to protect the right to
privacy of individual gun purchasers, Federal firearm
licensees, and law enforcement personnel.
Legislative History.--On March 28, 2006, the Subcommittee
on Crime, Terrorism and Homeland Security conducted a
legislative hearing on H.R. 5005. Testifying before the
Subcommittee were (1) Ms. Audrey Stucko, Deputy Assistant
Director, Enforcement Programs and Services, Bureau of Alcohol,
Tobacco, Firearms and Explosives; (2) Mr. Richard Gardiner,
Attorney-at-Law, Fairfax, VA; and (3) the Honorable Michael
Bloomberg, Mayor, New York City. The Subcommittee, via voice
vote, reported the bill favorably to the full committee on May
18, 2006. On Wednesday, September 6, 2006, the Committee on the
Judiciary conducted a markup on H.R. 5005.
H.R. 5040, the ``Death Penalty Reform Act of 2006''
Summary.--Congressman Louie Gohmert (R-TX) introduced the
Death Penalty Reform Act of 2006, which amends the Federal
criminal code to modify substantive law and procedures relating
to the death penalty, on March 29, 2006.
Capital punishment continues to spark significant debate
across the country. The Committee has made significant efforts
to ensure that capital punishment is implemented fairly against
the truly guilty. We now have in place greater safeguards and
technologies to ensure accuracy at the most important phase of
a prosecution--the trial. In addition to public safety and just
punishment of the guilty, our death penalty system vindicates
the rights of victims and their families--a group whose
interests are often minimized or ignored.
The Death Penalty Reform Act further improves notice
requirements, improves procedures for presenting evidence of
mental retardation or mitigating factors, improves juror
selection and retention, clarifies assignment of capital
counsel, and provides uniformity in implementing death
sentences. It adds certain crimes that result in death,
including obstruction of justice, as aggravating factors in
death penalty deliberations, and defines ``mentally retarded''
for death penalty purposes. Additionally, H.R. 5040 repeals the
prohibition against executing a person who is mentally
retarded, and grants the government an unlimited right to
rehearings of a finding of mental incapacity in death penalty
cases.
Legislative History.--H.R. 5040 was referred to the
Committee on the Judiciary then to the Subcommittee on Crime,
Terrorism, and Homeland Security on the same day--March 29,
2006. On March 30, Subcommittee hearings were held at which the
following individuals testified: Ms. Margaret P. Griffey, Chief
of the Capital Case Unit's Criminal Division at the U.S.
Department of Justice; Mr. Robert Steinbuch, Professor of Law
at the University of Arkansas; Mr. Kent Scheidegger, Legal
Director and General Counsel at the Criminal Justice Legal
Foundation; and Mr. David Bruck, Director of the Virginia
Capital Case Clearinghouse and Clinical Professor of Law at
Washington & Lee School of Law. No further action was taken
during the 109th Congress.
H.R. 5092, the ``The Bureau of Alcohol, Tobacco, Firearms, and
Explosives (BATFE) Modernization and Reform Act of 2006''
Summary.--Congressman Howard Coble (R-NC) and Robert Scott
(D-VA) introduced H.R. 5092 on April 5, 2006. H.R. 5092 was
introduced as a bipartisan attempt to address issues raised
during three oversight hearings conducted at the beginning of
2006, by the Subcommittee on Crime, Terrorism and Homeland
Security, regarding the investigation and enforcement
activities of the BATFE. The bill addresses a number of issues
relating to the BATFE's enforcement authority, including
authorization of civil penalties (e.g. fines and suspensions);
creation of independent administrative law judges to hear
enforcement cases; definition of serious and non-serious
violations; clarification of requisite intent for civil
violations; the establishment of investigative guidelines;
Department of Justice, Inspector Generals' investigation of the
BATFE gun show enforcement; limitation on BATFE authorities;
and clarification of several enforcement regulations.
The oversight hearings held by the Subcommittee raised
serious concerns over the BATFE's: Allocation of resources;
investigation techniques, including questionable stops,
searches and seizures of firearm purchasers and Federal firearm
licensees (``FFL''); and the lack of consistent law enforcement
policies and procedures among the BATFE's field offices and
central management. The hearings revealed the need for: (1) A
graduated penalty system in Title 18 U.S.C. Section 923, which
includes civil penalties, based on the degree of risk of harm
that the FFL's violation poses to others; (2) establishing a
system of neutral administrative law judges to review the
licensing decisions of the BATFE; (3) establishing
investigative guidelines similar to those of the Federal Bureau
of Investigation and Drug Enforcement Agency; and (4) other
modifications to the Federal laws to ensure that American
citizens receive due process of the law.
Legislative History.--The bill was introduced by
Representative Coble and Representative Scott on April 5, 2006,
and has over 110 cosponsors. Earlier this year, the
Subcommittee on Crime, Terrorism and Homeland Security
conducted three oversight hearings regarding the BATFE's
investigation and enforcement activities; this bill addresses
concerns raised at those hearings. The Subcommittee, via voice
vote, reported the bill favorably to the full committee on May
3, 2006. On Wednesday, September 6, 2006, the Committee on the
Judiciary conducted a markup on H.R. 5092, and reported the
bill favorably.
H.R. 5219 the ``Judicial Transparency and Ethics Enhancement Act of
2006''
Summary.--Chairman F. James Sensenbrenner, Jr. (R-WI)
introduced H.R. 5219 on April 27, 2006. H.R. 5219 provides for
the detection and prevention of inappropriate conduct in the
Federal judiciary through establishment of the Office of
Inspector General for the Judicial Branch. The Inspector
General is appointed by the Chief Justice of the United States
to conduct investigations of matters relating to the Judicial
Branch (other than the Supreme Court) including possible
misconduct of judges and proceedings under Chapter 16 of Title
28, United States Code, that may require oversight or other
action by Congress; to conduct and supervise audits and
investigations; to prevent and detect waste, fraud and abuse;
and to recommend changes in laws or regulations governing the
Judicial Branch.
The powers of the Inspector General are: (1) To make
investigations and reports; (2) to obtain information or
assistance from any Federal, State or local agency, or other
entity, or unit thereof, including all information kept in the
course of business by the Judicial Conference of the United
States, the judicial council of circuits, the administrative
office of United States courts, and the United States
Sentencing Commission; (3) to require, by subpoena or
otherwise, the attendance for the taking of testimony of any
witnesses and the production of any documents, which shall be
enforceable by civil action; (4) to administer or to take an
oath or affirmation from any person; (5) to employ officers and
employees; (6) to obtain all necessary services; and (7) to
enter into contracts or other arrangements to obtain services
as needed.
The Inspector General is required: (1) to provide the Chief
Justice and Congress with an annual report on the Inspector
General's operations; (2) to make prompt reports to the Chief
Justice and to Congress on matters which may require further
action; and (3) to refer to the Department of Justice any
matter that may constitute a criminal violation.
Any employee in the Judicial Branch who provides
information to the Inspector General would receive
whistleblower protection to protect against retaliation or
firing.
Legislative History.--On June 29, 2006, the Subcommittee on
Crime, Terrorism, and Homeland Security held a legislative
hearing on H.R. 5219. Witnesses who testified at the hearing
were the Honorable Charles Grassley, Republican Senator from
Iowa; Professor Ronald D. Rotunda, George Mason University
School of Law; Professor Arthur Hellman, University of
Pittsburgh School of Law; and Professor Charles Geyh, Indiana
University School of Law at Bloomington. On September 27, 2006,
the House Judiciary Committee favorably reported the bill, H.R.
5219, by a vote of 20-6.
H.R. 5825, the ``Electronic Surveillance Modernization Act''
Summary.--Representative Heather Wilson, Chairman
Sensenbrenner, and Select Committee on Intelligence Chairman
Hoekstra, and others introduced H.R. 5825, the ``Electronic
Surveillance Modernization Act,'' on July 18, 2006. This bill
would strengthen oversight of the executive branch and enhance
accountability by requiring the Government to provide more
information to the courts and to each Member of the House and
Senate Intelligence Committees; would modernize and simplify
the process for getting a FISA warrant and clarify its scope
and applicability; would update FISA to account for technology
changes in 21st Century communications; would clarify the
authority of our intelligence agencies in the event of an
attack on the United States; and would clarify the President's
authority and the Congress' oversight of surveillance programs.
The testimony presented at two hearings before the Subcommittee
on Crime, Terrorism, and Homeland Security, demonstrated that
the FISA process must be streamlined and technology-neutral.
Legislative History.--The Committee on the Judiciary
Subcommittee on Crime, Terrorism, and Homeland Security held
two hearings on H.R. 5825 on the 6th and 12th of September
2006. The witnesses who testified at the first hearing on the
6th were: Mr. Steve Bradbury, Acting Assistant Attorney
General, Office of Legal Counsel, U.S. Department of Justice;
Mr. Robert L. Deitz, General Counsel, National Security Agency;
Mr. Robert Alt, Fellow, Legal and International Affairs, The
John M. Ashbrook Center for Public Affairs, Ashland University;
and Mr. Jim Dempsey, Policy Director, Center for Democracy and
Technology. At the second hearing on the 12th, the following
individuals testified: Mr. John Eisenberg, Deputy Assistant
Attorney General Office of Legal Counsel, U.S. Department of
Justice, Mr. Vito Potenza, Acting General Counsel National
Security Agency; Ms. Kate Martin, Director, Center for National
Security Studies; and Mr. Bruce Fein, Principal, Bruce Fein and
Associates. On September 20, 2006, the Committee met in open
session and ordered favorably reported the bill, H.R. 5825,
with an amendment, by roll call vote with 20 ayes and 16 nays,
a quorum being present. The bill was reported to the House on
November 29, 2001 (H. Rept. 109-630, Part II). The House passed
the bill on September 28, 2006, by a recorded vote (Roll No.
502) of 232 yeas to 191 nays. No further action was taken on
the bill, H.R. 3209, during the 109th Congress.
H.R. 5304, the ``Preventing Harassment through Outbound Number
Enforcement Act, PHONE Act''
Summary.--Congressman Tim Murphy (R-PA) introduced H.R.
5304 on May 4, 2006. H.R. 5304 creates a new Federal criminal
code which prohibits a person from engaging in the practice
known as ``spoofing,'' which is the use of incorrect, fake or
fraudulent caller identification ``caller ID'' to hide their
identity in order to facilitate a fraudulent telephone call to
the recipient. Caller ID spoofing involves masking one's own
phone number and identifying information with another phone
number and identifying information. Call recipients divulge
personal and private information to the caller, under the
mistaken belief that the caller is a legitimate caller (e.g a
bank, credit card company or court of law). The bill imposes a
fine and or a prison term of up to five years for violations.
However, the legislation does not affect legally available
blocking of caller ID technology or lawfully authorized
activities of law enforcement or intelligence agencies. This
legislation is intended to help protect consumers from
harassment, identity theft, and other crimes.
Legislative History.--On Wednesday, November 15, 2006, the
Subcommittee on Crime, Terrorism, and Homeland Security held a
legislative hearing on H.R. 5304. The hearing focused on the
need to broaden the scope of current law to deter telephone
fraud and to better protect consumers' and their personally
identifiable data from fraudulent telephone use. Further, the
hearing focused on the need to increase the tools available to
the Department of Justice to prosecute and protect against
criminals that use fake telephone and caller identification to
commit crime. Testifying before the Subcommittee were the
Honorable Timothy Murphy, Representative, Pennsylvania's 18th
Congressional District; Mr. Barry Sabin, Deputy Assistant
Attorney General, Criminal Division, United States Department
of Justice; Mr. James Martin, President and Founder, 60-Plus
Association; and Mr. Phil Kiko, Chief of Staff and General
Counsel, U.S. House of Representatives, Committee on the
Judiciary. On December 8, 2006, the bill was considered under
suspended rules and passed by voice vote on December 9, 2006.
H.R. 5535, the ``Prevention of Civil RICO Abuse Act of 2006''
Summary.--Chairman F. James Sensenbrenner, Jr. (R-WI)
introduced H.R. 5535 on June 6, 2006. H.R. 5535 clarifies that
a foreign government may not sue under the civil remedy of the
Racketeer-Influenced and Corrupt Organizations (RICO) statute.
Section 1964 of Title 18 provides civil remedies for
violations of the criminal provisions of RICO. Subsection (a)
provides for equitable relief while subsection (c) provides for
treble damages. The House Judiciary Committee's Report that
accompanied adoption of the civil remedies provision stated
that it ``authorizes civil treble damage suits on the part of
private parties who are injured.'' Courts have interpreted the
civil RICO statute to bar the U.S. government as a plaintiff in
treble damage suits.
However, in recent years, foreign governments have begun
seeking civil RICO damages against American companies in U.S.
courts despite the lack of evidence that Congress ever intended
to provide such standing to foreign governments. The first
lawsuit came in 2000. Since then, over 30 foreign governments,
including Canada, Columbia, Equador, and ten European Community
countries, have filed civil RICO suits seeking billions of
dollars in taxes and tariffs alleging loss from smuggled goods.
Most of these cases have been dismissed pursuant to the
``revenue rule,'' which prohibits a court from enforcing a
foreign sovereign's revenue statutes.
In one case currently pending before the Eastern District
of New York, the Columbian government and 15 Columbian states
are attempting to circumvent the revenue rule by characterizing
their damages as ``commercial'' losses instead of tax revenue.
American companies are already expending ample time and
financial resources defending these suits. Should the Columbian
case survive dismissal, it will dramatically increase the costs
to American companies and consumers.
Legislative History.--On July 19, 2006, the Judiciary
Committee held a legislative markup, reporting the bill
favorably (as amended) by a recorded vote of 17-8. No committee
report was filed and no further action was taken in the 109th
Congress.
H.R. 5673, the ``Criminal Restitution Improvement Act of 2006''
Summary.--Congressman Steve Chabot (R-OH) introduced H.R.
5673 on June 22, 2006. H.R. 5673 makes restitution mandatory
for all Federal crimes and improves the procedures for
collecting Federal restitution.
Crime victims suffer tremendous loss at the hands of their
assailants. In addition to physical and emotional trauma,
victims suffer financial loss, including medical expenses, lost
earnings, and property damage. Annual losses for crime victims
have been estimated at $105 billion.
Restitution is intended to hold offenders accountable to
their victims for their conduct while attempting to make the
victims whole again by compensating their financial losses. At
the Federal level, however, as much as 87% of criminal debt
(restitution and fines) is uncollected each year. According to
a 2001 GAO study, the amount of outstanding criminal debt has
ballooned from $269 million to over $13 billion.
Restitution is currently collected by the Financial
Litigation Units (FLUs) of the United States Attorneys Offices.
The GAO identified four factors impacting debt collection that
fall outside the FLU's control: (1) the nature of debt
collection from incarcerated offenders, deported offenders, or
offenders with minimal earning capacity; (2) the statutory
requirement that the court assess restitution regardless of the
offender's ability to pay; (3) limitations on collection due to
court-ordered payment schedules; and (4) state laws that limit
the types of property that can be seized or amount of wages
that can be garnished.
GAO identified two factors within the FLU's control that,
if remedied, would improve criminal debt collection: (1) an
inadequate collection process; and (2) a lack of coordination
between the entities involved in restitution (the court, the
FLU, the probation officer, the prosecuting attorney).
H.R. 5673 makes restitution mandatory for all Federal
offenses in which an identifiable victim suffers pecuniary
loss. The bill also makes several changes to the current
restitution statute to improve collection of outstanding
restitution, including (1) directing the court to order
restitution due in full immediately, (2) making installment
payments discretionary rather than mandatory, (3) authorizing
the Attorney General to collect restitution above the
installment payment amount, (4) prohibiting early termination
from probation or supervised release if restitution is
outstanding, and (5) authorizing extension of probation or
supervised release if restitution is outstanding.
Legislative History.--On June 13, 2006, the Subcommittee on
Crime, Terrorism, and Homeland Security held a legislative
hearing on H.R. 5673. Witnesses who testified at the hearing
were Professor Doug Beloof, Director, National Crime Victim Law
Institute, Lewis and Clark Law School; Mr. Dan Levey,
President, Parents of Murdered Children, Inc.; and Mr. Jim
Felman, Partner, Kynes, Markman, and Felman, P.A., and Co-
Chair, Committee on Corrections and Sentencing, American Bar
Association.
H.R. 5749 the ``Internet Stopping Adults Facilitating the Exploitation
of Today's Youth Act (SAFETY) of 2006''
Summary.--Congressman Mark Foley (R-FL) introduced H.R.
5749 on July 10, 2006. H.R. 5749 provides additional
prosecution tools to combat Internet child pornography and
child exploitation. In recent years, Internet child pornography
has evolved from a need-driven industry in which pornographic
images are shared amongst pedophiles to a commercial enterprise
worth billions of dollars annually. Unethical business people
are capitalizing off of the Internet's virtual marketplace by
establishing child pornography websites where the user pays a
monthly fee to view and download child pornography images.
These child porn ``subscriptions'' can be purchased using a
major credit card or through an emerging tool known as a
virtual payment system. Unlike credit card companies, which
require the merchant to provide accurate personal information
such as name, address, and social security number, virtual
payments systems are essentially anonymous. Subscribers can
provide fictitious personal information and no credit card or
social security number is required, making them virtually
untraceable. The key to combating the commercial child
pornography industry is to cut it off at its source--money.
Legislative History.--H.R. 5749 was referred to the
Judiciary Committee on July 10, 2006. Portions of the bill were
included in H.R. 4472, the Adam Walsh Child Protection and
Safety Act of 2006, which passed the House on July 25, 2006,
and became Public Law 109-248 on July 27, 2006.
H.R. 5939, the ``Criminal Terrorism Improvements Act of 2006''
Summary.--Congressman Daniel E. Lungren (R-CA) introduced
H.R. 5939 on July 27, 2006. H.R. 5939 provides increased
penalties, including up to life in prison or death, for
terrorist offenses that result in the death of another person.
H.R. 5939 also provides that any person convicted of a
``Federal crime of terrorism'' is ineligible to receive any
benefits from the Federal Government for any term of years or
for life.
Since September 11, 2001, Federal and State officials have
worked diligently to prevent further terrorist attacks on U.S.
soil. Despite some changes to the law to increase penalties
after the deadly terrorist attacks, a jury still cannot
consider a sentence of death or life imprisonment for
terrorists in many cases even when the attack resulted in
death.
Existing law does not consistently provide adequate maximum
penalties for fatal acts of terrorism. For example, in a case
in which a terrorist caused massive loss of life by sabotaging
a national defense installation, sabotaging a nuclear facility,
or destroying an energy facility, there would be no possibility
of imposing the death penalty under the statutes defining these
offenses because they contain no death penalty authorizations.
In contrast, dozens of other Federal violent crime provisions
authorize up to life imprisonment or the death penalty in cases
where victims are killed. There are also cross-cutting
provisions which authorize these sanctions for specified
classes of offenses whenever death results, such as 18 U.S.C.
Sec. 2245, which provides that a person who, in the course of a
sexual abuse offense, ``engages in conduct that results in the
death of a person, shall be punished by death or imprisoned for
any term of years or for life.''
Current law allows Federal courts to deny Federal benefits
to persons who have been convicted of drug-trafficking or drug-
possession crimes. 21 U.S.C. Sec. 862. As a result, these
convicts can be prohibited, for periods of up to life, from
receiving grants, contracts, loans, professional licenses, or
commercial licenses that are provided by a Federal agency or
out of appropriated funds. But despite the fact that terrorism
is at least as dangerous to the our national security as drug
offenses, presently there is no legal authority to deny Federal
benefits to persons who have been convicted of terrorism
crimes.
Legislative History.--The bill was referred to the House
Judiciary Committee on July 27, 2006. No further action has
occurred.
H.R. 6254, the ``Sentencing Fairness and Equity Restoration Act of
2006''
Summary.--Chairman F. James Sensenbrenner, Jr. (R-WI)
introduced H.R. 6254 on September 29, 2006. H.R. 6254 proposes
a legislative fix to the Supreme Court's decision in United
States v. Booker, 543 U.S. 220 (2005), which invalidated the
mandatory sentencing requirement of the Sentencing Guidelines
(18 U.S.C. section 3553(b)(1)), and struck down the de novo
standard for appellate review of any downward departures in 18
U.S.C. Section 3742(e), which was enacted as part of the
PROTECT Act in 2003.
The Booker court ruled that the Sixth Amendment applies to
the Federal Sentencing Guidelines and noted that the Sixth
Amendment implications hinged on the mandatory nature of the
Guidelines, which are dependent on judicial fact-finding. Id.
at 232. In a separate opinion, the Court excised the provision
in section 3553(b) that instructed the court to ``impose a
sentence of the kind, and within the range'' provided by the
Guidelines.
H.R. 6254 replaces the mandatory provision excised by the
Court with a requirement that the court adhere only to the
minimum of the guideline range established by the Sentencing
Commission. This requirement, however, is not mandatory because
the court may still depart from the minimum of the range in
certain instances. The bill also reaffirms Congress' intent in
the Sentencing Reform Act of 1984 that the maximum sentence a
judge may impose is the statutory maximum rather than the
Guideline maximum. The Booker Court reasoned that because
section 3553(b)(1) required courts to adhere to the sentencing
guidelines, the ``maximum'' sentence authorized by law was, in
fact, the Guideline maximum and not the statutory maximum.
Amended section 3553(b)(1) removes the mandatory requirement
from the sentencing statute. Thus, the court is not bound by
the Guideline maximum and may impose a sentence up to the
maximum authorized by statute.
H.R. 6254 also amends section 3742(e) of Title 18 to re-
establish the de novo appellate review standard for downward
departures. In Booker, the Court excised the de novo appellate
review standard, which was enacted as part of the PROTECT Act,
based upon its rationale that this section ``contains critical
cross-references to the (now excised) Sec. 3553(b)(1) and
consequently must be severed and excised for similar reasons.''
Id. at 247. The Court, however, provides no nexus between the
de novo appellate standard of review and the Sixth Amendment
right to a jury for sentencing. Moreover, having excised the
mandatory sentencing provision in Sec. 3553(b)(1), the cross-
reference to that section in Sec. 3742(e) carries no Sixth
Amendment implications. Section 3742(e) merely outlines the
criteria appellate courts must use to review sentences. The
bill reasserts Congress' intent to reign in the increasing rate
of reduced sentences, particularly for sexual offenses,
expressed in the PROTECT Act. Pursuant to the bill, the
appellate courts will continue to review sentences below the
minimum of the range de novo while maintaining Booker's
reasonableness standard for all other sentencing appeals.
A significant result of the Booker decision is the spike in
downward departures for substantial assistance imposed by the
courts in the absence of a government motion. Substantial
assistance motions are filed in instances where the defendant
has provided the government with information relating to
another investigation or prosecution. In reviewing this
increase in sua sponte departures, the committee has learned
that the government's standards for these motions vary from
district to district, creating the potential for disparate
treatment of similarly situated defendants.
H.R. 6254, therefore, directs the Attorney General to
implement a uniform policy for departure motions for
substantial assistance, including the definition of substantial
assistance in the investigation, the process for determining
whether departure is warranted, and the criteria for
determining the extent of departure. The bill instructs the
Attorney General to report the policy to Congress within 180
days of enactment of this Act.
Finally, the bill amends section 994(w) of Title 28, which
governs the reporting requirements of the federal district
courts to the U.S. Sentencing Commission. This amendment simply
clarifies that the reporting required by this section is to be
completed by the judicial branch and may not be delegated to
the executive branch.
Legislative History.--The Subcommittee on Crime, Terrorism,
and Homeland Security held two oversight hearings on the Booker
decision on February 10, 2005, and March 16, 2006.
Oversight Activities
List of oversight hearings
Implications of the Booker/Fanfan Decision for the Federal
Sentencing Guidelines, February 10, 2005 (Serial No. 109-1).
Department of Homeland Security to Examine the Security of
the Nation's Seaports and the Cargo Entering Those Ports, March
15, 2005 (Serial No. 109-38).
Responding to Organized Crimes Against Manufacturers and
Retailers, March 17, 2005 (Serial No. 109-36).
Department of Justice to Examine the Use of Section 218 of
the USA PATRIOT Act, April 14, 2005.
Implementation of the USA PATRIOT Act: Effect of Sections
203(b) and (d) on Information Sharing, April 19, 2005 (Serial
No. 109-15).
Implementation of the USA PATRIOT Act: Sections of the Act
that Address Crime, Terrorism, and the Age of Technology,
Sections 209, 217, and 220, April 21, 2005 (Serial No. 109-18).
Implementation of the USA PATRIOT Act: Sections of the Act
that Address the Foreign Intelligence Surveillance Act (FISA).
(Part I), April 26, 2005 (Serial No. 109-17).
Implementation of the USA PATRIOT Act: Sections of the Act
that Address the Foreign Intelligence Surveillance Act (FISA).
(Part II), April 28, 2005 (Serial No. 109-17).
Implementation of the USA PATRIOT Act: Section 218, Foreign
Intelligence Information (``The Wall''), April 28, 2005 (Serial
No. 109-16).
Implementation of the USA PATRIOT Act: Sections 201, 202,
223 of the Act that Address Criminal Wiretaps, and Section 213
of the Act that Addresses Delayed Notice, May 3, 2005 (Serial
No. 109-20).
Implementation of the USA PATRIOT Act: Section 212--
Emergency Disclosure of Electronic Communications to Protect
Life and Limb, May 5, 2005 (Serial No. 109-14).
Implementation of the USA PATRIOT Act: Prohibition of
Material Support Under Sections 805 of the USA PATRIOT Act and
6603 of the Intelligence Reform and Terrorism Prevention Act of
2004, May 10, 2005 (Serial No. 109-13).
Implementation of the USA PATRIOT Act: Sections 505 and
804, May 26, 2005 (Serial No. 109-19).
Protecting our Nation's Children from Sexual Predators and
Violent Criminals: What Needs to be Done? June 9, 2005 (Serial
No. 109-31).
Offender Re-entry: What is Needed to Provide Criminal
Offenders With a Real Second Chance? November 3, 2005 (Serial
No.109-65).
Weak Bilateral Law Enforcement Presence at the U.S.-Mexico
Border: Territorial Integrity and Safety Issues for American
Citizens, November 17, 2005 (Serial No. 109-90). (Held jointly
with the Subcommittee on Immigration, Border Security and
Claims).
Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE)
Part I: Gun Show Enforcement, February 15, 2006 (Serial No.
109-123)
Victims and the Criminal Justice System: How to Protect,
Compensate, and Vindicate the Interests of Victims, February
16, 2006, (Serial No.109-87).
Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE)
Part II: Gun Show Enforcement, February 28, 2006 (Serial No.
109-123).
Outgunned and Outmanned: Local Law Enforcement Confronts
Violence Along the Southern Border, March 2, 2006 (Serial No.
109-85). (Held jointly with the Subcommittee on Immigration,
Border Security and Claims).
White Collar Enforcement: Attorney-Client Privilege and
Corporate Waivers, March 7, 2006 (Serial No. 109-112).
United States v. Booker: One Year Later--Chaos or Status
Quo? March 16, 2006, (Serial No. 109-121).
The Bureau of Alcohol, Tobacco, Firearms, and Explosives
(BATFE): Reforming Licensing and Enforcement Authorities, March
28, 2006 (Serial No. 109-121).
The Need for European Assistance to Columbia in the Fight
Against Illicit Drugs, September 21, 2006, (Serial No. 109-
148).
Oversight issues
Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) Facilities
Oversight
On August 17, 2005, committee staff toured ATF's new
laboratory in Ammendale, Maryland. The tour included the
explosives and arson labs, and a live burn demonstration inside
one of the facility's burn cells. Following the tour of the
laboratory, committee staff traveled to the Federal Law
Enforcement Training Center in Glynco, GA to see how ATF trains
agents.
Federal Air Marshals service
On September 28, 2004, the Committee sent a letter to
Thomas D. Quinn, Director of the Federal Air Marshals Service
(FAMS) regarding alleged security gaps in air travel. In their
letter, they asked the FAMS to respond to a number of detailed
questions by October 15, 2004. On October 20, 2004, Director
Quinn responded with 29 pages of information and several
classified secret documents, which were placed in a separate
folder.
Committee staff reviewed the files and began to
independently interview rank-and-file Federal Air Marshals from
various FAMS field offices across the country. Over 30 Federal
Air Marshals from the Washington, Boston, Chicago, Atlanta, Los
Angeles, Las Vegas, Houston, and Dallas field offices were
interviewed in person, via telephone, or by email
correspondence. Every Federal Air Marshal interviewed indicated
that there are ways in which the service needs improving. An
overwhelming majority of the interviewed Air Marshals stated
that most concerns centered around threats created by the
Service's own policies to preserving anonymity and safety. Most
also indicated a reluctance to approach supervisors with these
concerns for fear of retaliation that included being given
difficult scheduling assignments and being required to wash
FAMS vehicles and paint office walls. Many of those interviewed
said that they initially tried to voice their concerns to FAMS
supervisors but were told that there would be no changes.
Following the investigation the Committee released an
investigative report on May 25, 2006 entitled Plane Clothes:
Lack of Anonymity at the Federal Air Marshal Service
Compromises Aviation and National Security. In the months
following the release of the report, committee staff worked
closely with FAMS management to ensure that policy
modifications would be made to better ensure the anonymity of
FAMS. On August 24, 2006, new policy modifications were
announced by FAMS management to help achieve this goal.
Additionally, FAMS management made a commitment to review and
modify any other policy that compromises anonymity.
United States Secret Service Mission oversight
From July 5th through 9th, 2005, subcommittee staff went to
Las Vegas, NV and San Francisco, CA to examine the United
States Secret Service's investigative efforts to detect and
prevent electronic crimes, including identity theft, network
intrusions and denial-of-service attacks. The trip also
highlighted the partnerships being utilized by the Secret
Service with local law enforcement and the private sector in
order to combat electronic crimes. Through these partnerships,
the Secret Service has developed Electronic Crimes Task Forces
across the nation.
Terrorist travel
On August 10, 2005, subcommittee staff met with Kelly
Moore, one of the five principal authors of 9/11 and Terrorist
Travel, a Staff Report on the National Commission on Terrorist
Attacks upon the United States. She briefed staff about
terrorist mobility, border security, how the 9/11 hijackers
penetrated our border security, how other terrorists in the
past operated. Additionally, she shared her thoughts on what
can be done to better detect terrorists when they travel.
The Federal Bureau of Investigation's Community Outreach Program
Following the highly publicized incident of two NFL players
getting intoxicated and into a fight at a Federal Bureau of
Investigation's ``liaison day,'' subcommittee staff received a
briefing on December 14, 2005 relating to the FBI's Community
Outreach Program. The Community Outreach Program focuses its
efforts on the community, the schools and the work-place. The
FBI's goal is to assist our communities in the education of
crimes, drugs, gangs, and violence. This program highly
supports the investigative mission of the FBI by providing and
developing programs that help reduce societal problems. Typical
activities within this program include adopt-a-school programs,
mentoring programs, and citizen's academies. During the
briefing, the FBI indicated that it was a highly successful
program and that the Chicago incident was an aberration and the
incident was under internal investigation.
Transportation Security Administration
Subcommittee staff requested and received a series of
briefings relating to the mission of the Transportation
Security Administration (TSA). These briefings included TSA's
decision to amend its prohibited items list to allow small
scissors and tools on board an airplane, the use of Federal Air
Marshals to patrol and monitor train, bus, and ferry depots,
and the implementation of the Screening of Passengers by
Observation Techniques (``SPOT'') to screen possible terrorist
and/or illegal behavior.
Drug Enforcement Administration's regulation enforcement against small
distributers
Subcommittee staff met with the Drug Enforcement Agency
(DEA) on August 15, 2006 to discuss DEA's regulation
enforcement against small distributers. Specifically, the
subcommittee was concerned that DEA was engaging in a pattern
of heavy handed tactics against small and medium sized
distributers of List 1 chemicals despite a lack of evidence of
non-compliance with DEA regulations. The subcommittee was also
concerned that DEA was lacking an expedient timetable for
publishing proposed regulations to implement the Combat Meth
Act.
COPS program
On May 10, 2003, the Committee on the Judiciary requested
that the General Accounting Office (GAO) do an analysis of data
provided to the Committee by the Department of Justice
regarding the Community Oriented Policing Services (COPS)
program. The data was provided to GAO on May 13, 2003. Due to
time constraints, the GAO indicated that it could not provide
an official analysis. Accordingly, in a letter to David M.
Walker, Comptroller General of the United States, dated June 2,
2003, the Chairman extended the deadline for the request to
June 3, 2003 to ensure that an official document could be
provided. Additionally, the Committee requested that GAO do an
independent study of the COPS Program's effect on crime,
including consideration of other Federal, state, and local
programs or policies that are also focused on reducing crime.
On November 11, 2003, staff from the GAO met with staff
from the Judiciary Committee regarding this issue. In a letter
dated January 8, 2004, the GAO notified the Committee that a
separate design phase would be necessary to assess the
relationship between COPS funding and crime while considering
the effects of other such programs. The GAO estimated that the
design phase would be completed by March 31, 2004.
The Committee staff met with GAO over the next year to
discuss the design phase and progress of the study of the
effect of COPS. The Committee worked with the GAO to ensure
that any study on the effects of COPS grants also took into
consideration funds that were provided by other Federal grant
programs to state and local governments to combat local crime.
On June 3, 2005, the GAO provided the Committee with an
interim report on the effect of the COPS program and other
grant programs administered by the Department of Justice on
local crime rates. The GAO completed its study on October 14,
2005. The GAO concluded that ``while COPS expenditures led to
increases in sworn police officers above levels that would have
been expected without these expenditures and through the
increases in sworn officers led to declines in crime, we
conclude that COPS grants were not the major cause of the
decline in crime from 1994 through 2001.''
This information was utilized by the Committee in reforming
the COPS grant program to allow flexibility in the use of funds
by state and local governments to ensure funds were directed as
needed.
Border kidnaping and violence
On July 19, 2005, subcommittee staff received a briefing
from the Federal Bureau and Investigation (FBI) and the
Department of State on a rash of kidnaping incidents along the
Texas/Mexico border, particularly in the region of Laredo, TX.
The FBI and Department of State detailed the methods used by
the government to adequately warn U.S. citizens about the
violence, ensure that the violence does not spill onto U.S.
territory, and effectively protect border integrity. On
November 3, 2005, subcommittee staff met with representatives
of the Immigration and Customs Enforcement (ICE) to discuss
Operation Black Jack. Operation Black Jack is an interagency
effort coordinated by ICE, launched to combat violence and drug
smuggling activities in the Laredo region. These briefings lead
to the ``Weak Bilateral Law Enforcement Presence at the U.S.-
Mexico Border: Territorial Integrity and Safety Issues for
American Citizens'' hearing on November 17, 2005.
U.S. Marshals service
From March 20-22, 2006, majority and minority staff visited
the New York/New Jersey Regional Fugitive Task Force (RFTF).
The NY/NJ RFTF is the ``flagship'' of the regional fugitive
task force offices, and has been involved in many fugitive
apprehension initiatives since its inception in May 2002. The
NY/NJ RFTF also benefits from a fully-operational Regional
Technical Operations Center in Morristown, NJ, which includes
both electronic and air surveillance capabilities.
Staff visited both the Manhattan headquarters and the
Newark main office, met with the United States Marshals of the
Southern District of New York, Eastern District of New York,
and District of New Jersey. Staff also received briefings on
many of the RFTF's significant initiatives and participated in
a ride-along with teams of Federal, state, and local partners
to witness the RFTF in action.
Staff were provided with briefings on the operations of the
USMS Financial Surveillance Unit, Operation Safe Surrender, the
USMS Camden Initiative, and the Technical Operations Group.
Staff were able to observe the equipment used for electronic
surveillance and air surveillance.
In addition to the fugitive apprehension ride-along in New
York, Committee staff participated in fugitive apprehensions in
the Washington, DC region. In August of 2006, staff also
visited the U.S. Marshals Electronic Surveillance Unit to
review technology and operations utilized in electronic
surveillance for fugitive apprehensive.
Finally, in May 2006, the subcommittee requested that the
Marshals provide a briefing on Operation FALCON II. At the
briefing, Judiciary staff reviewed technology and procedures
used by the U.S. Marshals to track down fugitives.
The Federal Bureau of Investigation's use of confidential informants
In February 2004, the House Committee on the Judiciary,
pursuant to its oversight responsibilities, resumed a review of
the Federal Bureau of Investigation's (FBI) Confidential
Informant program initially begun by the House Committee on
Government Reform, including its guidelines, policies, and
practices.
While the Government Reform investigation highlighted the
problems in the Boston field office, the House Committee on the
Judiciary delved into the FBI's development of confidential
informants and whether or not the Boston field office was
representative of general problems existing throughout the
agency's confidential informant program. The Committee also
examined the reforms promised to the Committee on Government
Reform by Director Robert Mueller in November of 2003, as well
as a review of compliance with the Confidential Informant
Guidelines, revised in January 2001, that among other things,
established the Confidential Informant Review Committee.
To pursue its oversight investigation, the Committee
conducted numerous meetings and sent correspondence to various
State and Federal agencies, including the Department of
Justice, inquiring into the FBI's use of confidential
informants.
In September 2005, the Department of Justice Office of the
Inspector General (OIG) released a report entitled, ``The
Federal Bureau of Investigation's Compliance with the Attorney
General's Investigative Guidelines'' (the Report). The four
areas reviewed concerning FBI's compliance with the Guidelines
were: Confidential Informants; Undercover Operations; General
Crimes, Racketeering Enterprise and Terrorism Enterprise
Investigations; and Consensual Monitoring. In the Report, the
OIG reviewed the FBI's implementation of the revised
Investigative Guidelines with two main objectives: (1) to
assess the FBI's compliance with the revised guidelines; and
(2) to evaluate the procedures that the FBI employed to ensure
that the revised Guidelines were properly implemented. The most
significant problems cited were failures to comply with the
Confidential Informant Guidelines. In fact, the OIG identified
one or more Guidelines violations in 87 percent of the
confidential informant files examined. The subcommittee worked
with the Department of Justice and FBI to examine these
shortcomings.
Federal Bureau of Investigation's relaxing of drug standards for
certain employees
After it came to the subcommittee's attention that the
Federal Bureau of Investigation (FBI) was considering relaxing
its hiring standards regarding prior drug use for certain
classifications of employees, a letter was sent on November 16,
2005 to the FBI asking for clarification on this issue Because
the FBI has a long history of investigating, prosecuting, and
attempting to prevent drug crimes, the subcommittee was
concerned that a new policy reflecting a more permissive
standard relating to drug use drastically reduces the FBI's
efforts in these areas. The FBI responded on January 6, 2005
clarifying the policy shift.
SUBCOMMITTEE ON THE CONSTITUTION
STEVE CHABOT, Ohio, Chairman
JERROLD NADLER, New York TRENT FRANKS, Arizona
JOHN CONYERS, Jr., Michigan WILLIAM L. JENKINS, Tennessee
ROBERT C. SCOTT, Virginia SPENCER BACHUS, Alabama
MELVIN L. WATT, North Carolina JOHN N. HOSTETTLER, Indiana
CHRIS VAN HOLLEN, Maryland MARK GREEN, Wisconsin
STEVE KING, Iowa
TOM FEENEY, Florida
Tabulation of subcommittee legislation and activity
Legislation referred to the Subcommittee......................... 139
Legislation on which hearings were held.......................... 7
Legislation reported favorably to the full Committee............. 2
Legislation reported adversely to the full Committee............. 0
Legislation reported without recommendation to the full Committee 0
Legislation reported as original measure to the full Committee... 0
Legislation discharged from the Subcommittee..................... 7
Legislation pending before the full Committee.................... 2
Legislation reported to the House................................ 6
Legislation discharged from the Committee........................ 0
Legislation pending in the House................................. 0
Legislation failed passage by the House.......................... 0
Legislation passed by the House.................................. 12
Legislation pending in the Senate................................ 4
Legislation vetoed by the President (not overridden)............. 0
Legislation enacted into Public Law.............................. 1
Days of legislative hearings..................................... 7
Days of oversight hearings....................................... 22
Jurisdiction of the Subcommittee
The Subcommittee on the Constitution has jurisdiction over
the following subject matters: constitutional amendments,
constitutional rights, federal civil rights laws, ethics in
government, other appropriate matters as referred by the
Chairman, and relevant oversight.
Legislative Activities
H. Res. 97, Expressing the sense of the House of Representatives that
judicial determinations regarding the meaning of the
Constitution of the United States should not be based on
judgments, laws, or pronouncements of foreign institutions
unless such foreign judgments, laws, or pronouncements inform
an understanding of the original meaning of the Constitution of
the United States.
Summary.--H. Res. 97 provides that ``it is the sense of the
House of Representatives that judicial interpretations
regarding the meaning of the Constitution of the United States
should not be based in whole or in part on judgments, laws, or
pronouncements of foreign institutions unless such foreign
judgments, laws, or pronouncements inform an understanding of
the original meaning of the Constitution of the United
States.'' In several recent cases, the U.S. Supreme Court has
cited decisions by foreign courts and treaties not ratified by
this country to support its interpretations of the United
States Constitution.
Legislative History.--H. Res. 97 was introduced by Rep. Tom
Feeney on February 15, 2005. On July 19, 2005, the Constitution
Subcommittee held a hearing on H. Res. 97 at which testimony
was received from the following witnesses: Mr. Viet D. Dinh,
Professor, Georgetown University Law Center; Mr. M. Edward
Whelan, III, President, Ethics and Public Policy Center; Mr.
Nicholas Q. Rosenkranz, Professor, Georgetown University Law
Center; Ms. Sarah Cleveland, Professor, University of Texas
School of Law. The following material was submitted for the
hearing record: Prepared Statement of the Honorable Tom Feeney,
a Representative in Congress from the State of Florida;
Prepared Statement of the Honorable Bob Goodlatte, a
Representative in Congress from the State of Virginia; Prepared
Statement of Public Citizen's Global Trade Watch. On September
29, 2005, the Constitution Subcommittee ordered favorably
reported H. Res. 97 by a vote of 8 to 3.
H. Con. Res. 335, Honoring and praising the National Association for
the Advancement of Color People on the occasion of its 97th
Anniversary.
Summary.--H. Con. Res. 335 honors and praises the NAACP on
the occasion of its 97th Anniversary. The NAACP was founded in
1909 and since that time has been at the forefront of all of
the struggles for racial justice. Through members, such as Rosa
Parks, who ignited a national movement, and former Supreme
Court Justice Thurgood Marshall, whose leadership led to the
landmark legal victory, Brown v. Board of Education, the NAACP
has been a force through which our nation has undergone
significant change.
Legislative History.--H. Con. Res. 335 was introduced by
Representative Al Green on February 8, 2006, and was
subsequently referred to the House Judiciary Committee and the
Subcommittee on the Constitution. Chairman Sensenbrenner moved
to suspend the rules and the resolution passed the House by
voice vote on March 1, 2006. The resolution was agreed to
without amendment and with a preamble by unanimous consent in
the Senate on May 10, 2006.
H.R. 748--Child Interstate Abortion Notification Act
Summary.--H.R. 748, the ``Child Interstate Abortion
Notification Act'' (CIANA) has two primary purposes: to protect
the health and safety of young girls by preventing valid and
constitutional state parental involvement laws from being
circumvented and to protect the right of parents to be involved
in the medical decisions of their minor daughters. To achieve
these purposes, H.R. 748 makes it a federal offense to
knowingly transport a minor across a state line, with the
intent that she obtain an abortion, in circumvention of a
state's parental consent or parental notification law. H.R. 748
also requires that a parent, or if necessary a legal guardian,
be notified pursuant to a state parental involvement law or a
default federal parental notification rule when a minor crosses
state lines to obtain an abortion. A violation of H.R. 748 is a
Class One misdemeanor, carrying a fine of up to $100,000 and
incarceration of up to one year. H.R. 748 supports state laws
that provide parents with the necessary information to fulfill
their obligation to care for their minor children, and it
affirms the common-sense notion that parents have the legal
right to be involved in medical decisions relating to their
minor children when those decisions involve interstate
abortions.
Legislative History.--H.R. 748, the ``Child Interstate
Abortion Notification Act'' (CIANA), was introduced on February
10, 2005, by Rep. Ileana Ros-Lehtinen. The Subcommittee on the
Constitution held a hearing on H.R. 748 on March 3, 2005, at
which testimony was received from the following witnesses: Ms.
Marcia Carroll, Victim, Lancaster, Pennsylvania; Professor
Richard Myers, Professor of Law, Ave Maria School of Law, Ann
Arbor, MI; Dr. Warren Seigel, FAAP, FSAM, Director of
Adolescent Medicine, Chairman of Pediatrics, Coney Island
Hospital; Professor Teresa S. Collett, Professor of Law,
University of St. Thomas School of Law, Minneapolis, MN. The
following materials were submitted for the hearing record:
Prepared Statement of the Honorable Steve Chabot,
Representative from Ohio's 1st district, and Chairman of the
Subcommittee on Constitution; Prepared Statement of the
Honorable Jerrold Nadler, Representative from New York's 8th
district, and Ranking Member of the Subcommittee on the
Constitution; Prepared Statement of the Honorable Steve King,
Representative from Iowa's 5th district; Prepared Statement of
the Honorable Ileana Ros-Lehtinen, Representative from
Florida's 18th district; Prepared Statement of Dr. John C.
Harrison, Professor of Law, University of Virginia; abortion
form for Ashley Carroll, signed by her doctor, Dr. Kaji, and
materials related to Dr. Kaji and Brigham clinics submitted by
Chairman Steve Chabot. On March 17, 2005, the Subcommittee on
the Constitution forwarded H.R. 748 (as amended) to the House
Judiciary Committee by a voice vote. On April 13, 2005, the
House Judiciary Committee reported out the bill (as amended) by
a vote of 20 to 13. On April 27, 2005, H.R. 748 (as amended)
passed the House by a vote of 270 to 157.
S. 403--Child Custody Protection Act
Summary.--S. 403, the ``Child Custody Protection Act''
(CCPA) as received from the Senate and the ``Child Interstate
Abortion Notification Act'' as amended by the House, has two
primary purposes: to protect the health and safety of young
girls by preventing valid and constitutional state parental
involvement laws from being circumvented and to protect the
right of parents to be involved in the medical decisions of
their minor daughters. To achieve these purposes, S. 403 makes
it a federal offense to knowingly transport a minor across a
state line, with the intent that she obtain an abortion, in
circumvention of a state's parental consent or parental
notification law. As amended by the House, S. 403 also requires
that a parent, or if necessary a legal guardian, be notified
pursuant to a state parental involvement law or a default
federal parental notification rule when a minor crosses state
lines to obtain an abortion. A violation of S. 403 is a Class
One misdemeanor, carrying a fine of up to $100,000 and
incarceration of up to one year. S. 403 supports state laws
that provide parents with the necessary information to fulfill
their obligation to care for their minor children, and it
affirms the common-sense notion that parents have the legal
right to be involved in medical decisions relating to their
minor children when those decisions involve interstate
abortions.
Legislative History.--S. 403 was introduced by Sen. John
Ensign on February 16, 2005, and passed the Senate on July 25,
2006, by a vote of 65 to 34. It was received in the House that
same day. As received in the House, S. 403, the ``Child Custody
Protection Act'' makes it a federal offense to knowingly
transport a minor across a state line, with the intent that she
obtain an abortion, in circumvention of a state's parental
consent or parental notification law. The House substituted
into S. 403 language nearly identical to H.R. 748, the ``Child
Interstate Abortion Notification Act,'' which the House passed
(as amended) on April 27, 2005, by a vote of 270 to 157. The
House substitute to S. 403 includes technical and conforming
changes that further improve the legislation. It contains two
clarifying provisions adopted in the other body to prevent a
parent who has committed incest from being able to obtain money
damages from someone who might transport a minor across State
lines to obtain an abortion and makes it a Federal crime for
someone who has committed incest to transport a minor across a
State line with the intent that the minor obtain an abortion.
In addition, the substitute contains an exception to the
notification requirement if a parent is physically present when
the minor obtains the abortion and makes clear that the
parental notification need not be provided by the abortion
provider personally but may also be provided by an agent of the
abortion provider. The substitute also contains a technical
change to the definition of ``abortion'' that excludes
treatment for potentially dangerous pregnancies and creates a
new ``medical emergency exception'' to ensure the bill will
withstand any constitutional challenge. The substitute makes
clear that its provisions apply when State lines are crossed to
enter into any foreign nation or an Indian tribe. Finally, the
substitute changes the effective date so that the Act and its
amendments shall take effect 45 days after the date of
enactment of the Act. The House passed S. 403, as amended, on
September 26, 2006, by a vote of 264 to 153. Cloture on a
motion to concur to the House amendment failed in the Senate on
September 29, 2006, by a vote of 57 to 42.
H.R. 2679, the Public Expression of Religion Act of 2005
Summary.--H.R. 2679 (as amended) amends 42 U.S.C.
Sec. Sec. 1983 and 1988 to limit the available remedies to
injunctive and declarative relief and to disallow attorney's
fees awards to prevailing parties in Establishment Clause
cases. 42 U.S.C. Sec. 1983 is the federal statute that allows
people to sue State and local governments for alleged
constitutional violations of their individual rights. 42 U.S.C.
Sec. 1988 is the federal fee-shifting statute that allows
prevailing plaintiffs in lawsuits filed under Sec. 1983 to be
awarded attorney's fees from the defendant. H.R. 2679 will
prevent the legal extortion that currently requires State and
local governments, and the federal government, to accede to
demands for the removal of religious text and imagery when such
removal is not compelled by the Constitution.
Legislative History.--H.R. 2679 was introduced by Rep. John
Hostettler on May 26, 2005. On June 22, 2006, the Constitution
Subcommittee held a hearing on H.R. 2679 at which testimony was
received from the following witnesses: Mr. Rees Lloyd,
Commander, District 21, The American Legion; Mr. Mathew D.
Staver, Founder and Chairman, Liberty Counsel, Interim Dean,
Liberty University School of Law; Mr. Marc Stern, General
Counsel, American Jewish Congress; Professor Patrick Garry,
Associate Professor of Law, University of South Dakota School
of Law. The following materials were submitted for the hearing
record: Prepared Statement of the Honorable John Conyers, Jr.,
a Representative in Congress from the State of Michigan, and
Member, Subcommittee on the Constitution; Additional
Information submitted by Mathew D. Staver, Founder and
Chairman, Liberty Counsel, Interim Dean, Liberty University
School of Law; Additional Information submitted by Marc Stern,
General Counsel, American Jewish Congress; Prepared Statement
of the Alliance Defense Fund concerning H.R. 2679, the ``Public
Expression of Religion Act of 2005''; Prepared Statement of
Steven W. Fitschen, President, The National Legal Foundation;
and the following letters inserted into the record by the
Honorable Robert C. Scott--Letter from Ruth Flower, Legislative
Director, Friends Committee on National Legislation, to The
Honorable Steve Chabot, dated June 19, 2006; Letter from Wade
Henderson, Executive Director, and Nancy Zirkin, Deputy
Director, Leadership Conference on Civil Rights, to Members of
the Judiciary Committee, dated June 21, 2006; Letter from
Caroline Fredrickson, Director, American Civil Liberties Union,
dated June 22, 2006; Letter from the American Civil Liberties
Union, et. al., dated June 22, 2006; Letter from the Reverend
Barry W. Lynn, Executive Director, Americans United for
Separation of Church and State, to Chairman Chabot and Ranking
Member Nadler, dated June 22, 2006. The Committee on the
Judiciary held a markup of H.R. 2679 on July 26 and September
7, 2006, reporting the bill favorably with an amendment by a
voice vote on September 7, 2006. The House passed H.R. 2679, as
amended, on September 26, 2006, by a vote of 244 to 173. No
further action was taken on the bill in the Senate.
H.R. 4128, The Private Property Rights Protection Act
Summary.--H.R. 4128 responds to the Supreme Court's
notorious June 23, 2005 decision in Kelo v. City of New London,
in which it held that ``economic development'' can be a
``public use'' under the Fifth Amendment's Takings Clause. In
doing so, the Supreme Court allowed the government to take
perfectly fine private property from one small homeowner and
give it to a large corporation for a private research facility.
H.R. 4128 enhances the penalty for states and localities that
abuse their eminent domain power in that way by denying states
or localities that commit such abuse all federal economic
development funds for a period of two years. H.R. 4128 also
includes an express private right of action to make certain
that those suffering injuries from a violation of the bill will
be allowed access to state or federal court to enforce its
provisions. It also includes a fee-shifting provision--
identical to those in other civil rights laws--that allows a
prevailing property owner attorney and expert fees as part of
the costs of bringing the litigation to enforce the bill's
provisions. Under H.R. 4128, States and localities will have
the clear opportunity to cure any violation before they lose
any federal economic development funds by either returning or
replacing the improperly taken property. H.R. 4128 also
includes carefully crafted refinements of the definition of
``economic development'' that specifically allow the types of
takings that, prior to the Kelo decision, had achieved a
consensus as to their appropriateness. These exceptions include
exceptions for the transfer of property to public ownership, to
common carriers and public utilities, and for related things
like pipelines. The bill also makes reasonable exceptions for
the taking of land that is being used in a way that constitutes
an immediate threat to public health and safety and the
redeveloping of ``brownfields'' sites in which contamination or
the threat of contamination prevents their private development.
The bill also makes exceptions for the merely incidental use of
a public building by a private entity, such as a small
privately run gift shop on the ground floor in a public
hospital, for the acquisition of abandoned property, and for
clearing defective chains of title in which no one can be said
to really own the property in the first place. Finally, H.R.
4128 would not become effective until the start of the first
fiscal year following the enactment of the legislation, in
order to provide states and localities with sufficient lead
time within which to prepare to come into compliance with the
legislation. And H.R. 4128 would not apply to any project for
which condemnation proceedings had begun prior to enactment.
Legislative History.--H.R. 4128 was introduced by Rep.
Sensenbrenner on October 25, 2005. A hearing on the issues
surrounding this legislation was held in the House Subcommittee
on the Constitution on September 22, 2005, at which the
following witnesses appeared: Ms. Dana Berliner, Senior
Attorney, Institute for Justice; Mr. Michael Cristofaro,
Resident, New London, Connecticut; Mr. Hilary O. Shelton,
Director, NAACP, Washington Bureau; Mr. Bart Peterson, Mayor,
Indianapolis, Indiana. On October 31, 2005, H.R. 4128 was
ordered reported (as amended) by the House Judiciary Committee
by a vote of 27 to 3. On November 3, 2005, H.R. 4128 passed the
House by a vote of 376 to 38.
H.R. 4772, The Private Property Rights Implementation Act
Summary.--H.R. 4772 would override several judicially
created prudential rules that currently prohibit most property
owners from getting into federal court with a federal claim
under the Takings Clause of the Constitution. H.R. 4772 would
do so by preventing a federal court from refusing to hear a
case in which only federal claims are alleged. If a matter of
state law is unresolved, then the federal district court may
certify the question of state law to the highest appellate
court of that state. After the state appellate court resolves
the question certified to it, the federal district court shall
proceed with resolving the merits of the federal claim. H.R.
4772 would also clarify when a constitutional takings claim is
``ripe'' and therefore ready for federal adjudication. Under
the bill, only after land use reviews at the application,
waiver, and administrative appeal levels would a property owner
have a ``ripe'' federal constitutional claim for adjudication
by a federal court. H.R. 4772 would also clarify the rights of
property owners raising certain types of constitutional claims
by doing the following: clarifying that conditions or exactions
that are imposed upon a property owner in order to receive a
permit must be roughly proportional to the impact the
development might have; clarifying the so-called ``denominator
question'' in cases concerning subdivided lots by requiring
that federal courts look at the impact of a takings claim on
each individual lot that is recognized as a separate
independent property unit under state law; and by clarifying
that the standard for due process claims in a takings case is
an ``arbitrary and capricious'' standard.
Legislative History.--H.R. 4772 was introduced by Rep.
Chabot on February 16, 2006. The Subcommittee held a hearing on
this legislation on June 8th, 2006. The following witnesses
appeared at the hearing: Mr. Joseph Trauth, Partner, Keating,
Muething & Klekamp, PLL; Mr. Franklin Kottschade, representing
the National Association of Home Builders; Daniel L. Siegel,
Supervising Deputy Attorney General, Office Attorney General,
California, Land Law Section; Mr. Steven Eagle, Professor of
Law, George Mason Law School. On July 12, 2006, H.R. 4772 was
ordered reported (as amended) by the House Judiciary Committee
by voice vote. H.R. 4772 was brought up on the Suspension
Calendar on September 26, 2006, but failed to obtain the
requisite two-thirds majority by a vote of 234-172. H.R. 4772
was brought up under a rule on September 29, 2006, and it
passed the House by a vote of 231-181. No further action was
taken on the bill in the Senate.
H.R. 4975, the 527 Reform Act of 2006
Summary.--H.R. 4975 provides for increased disclosure of
efforts by paid lobbyists to influence the decision-making
process and actions of Federal legislative and executive branch
officials while protecting the constitutional right of the
people to petition the government for a redress of their
grievances. The Act is designed to strengthen public confidence
in government by expanding the scope of disclosure under the
Lobbying Disclosure Act of 1995. It also creates a more
effective and equitable system for administering and enforcing
these disclosure requirements.
Legislative History.--Rep. David Dreier introduced H.R.
4975 on March 16, 2006, and the bill was referred to the
Committee on the Judiciary, as well as the Committees on House
Administration, Rules, Government Reform, and Standards of
Official Conduct. On April 4, 2006, the Subcommittee on the
Constitution held a hearing on H.R. 4975 at which the following
individuals testified: Mr. Kenneth A. Gross, Partner, Skadden,
Arps, Slate, Meagher & Flom LLP; Mr. John Graham, President and
CEO of the American Society of Association Executives; the
Honorable Chellie Pingree, President and CEO, Common Cause; and
the Honorable Bradley A. Smith, Professor of Law, Capital
University Law School, on behalf of Center for Competitive
Politics. On April 5, 2006, the Committee on the Judiciary held
a markup on the bill and reported it favorably, with amendment,
by a recorded vote of 18 to 16. On April 6, 2006, the Committee
on House Administration held a markup on the bill and reported
it favorably without amendment by a vote of 5 to 2. On April 5,
2006, the Committee on Rules held a markup on H.R. 4975 and
reported it favorable, with amendment, by voice vote. On April
6, 2006, the Committee on Government Reform held a markup on
the bill and reported it favorably, with amendment, by voice
vote. The Committee on Standards of Official Conduct discharged
the bill without further consideration. The House of
Representatives considered H.R. 4975 on May 3, 2006, and passed
the bill by a vote of 217 to 213.
H.R. 5575, the Pigford Claims Remedy Act of 2006
Summary.--H.R. 5575, the Pigford Claims Remedy Act of 2006,
provides a mechanism for the determination on the merits of the
claims of claimants who met the class criteria in a civil
action relating to racial discrimination by the Department of
Agriculture, but who were denied that determination. H.R. 5575
is intended to remedy the flaws in the administration of the
Pigford v. Glickman Consent Decree that unintentionally left
more than 75,000 late claim petitioners out of the Pigford
Consent Decree. H.R. 5575 provides those farmers who filed late
claim petitions with the Pigford Court-appointed arbitrator and
who were denied entry into the Consent Decree with a new cause
of action in Federal court if the late claim petitioner can
prove that she or he meets the class definition set forth in
the Consent Decree and has a discrimination complaint as
defined by the Consent Decree. H.R. 5575 is the product of the
Subcommittee on the Constitution's work over the last two
years, which included two oversight hearings held on September
28, 2004 and November 18, 2004, respectively and one field
briefing conducted in Cincinnati, Ohio on February 28, 2005. In
addition to the oversight hearings and field briefing, Chairman
Sensenbrenner and Mr. Chabot, together with Ranking Member
Conyers, Judiciary Committee Member Bobby Scott, Representative
Towns, and Representative Thompson, requested a GAO study into
the administration of the Pigford Consent Decree. The GAO
report, which was released on April 4, 2006, made no findings
or recommendations but described the administrative process set
forth by the Consent Decree.
Legislative History.--H.R. 5575, was introduced by House
Judiciary Subcommittee on the Constitution Chairman Steve
Chabot on June 9, 2006.
H.R. 5388, the District of Columbia Fair and Equal House Voting Rights
Act of 2006
Summary.--H.R. 5388, the ``District of Columbia Fair and
Equal House Voting Rights Act of 2006'' was introduced by Rep.
Tom Davis and Del. Eleanor Holmes Norton in a bipartisan effort
to give citizens of the District of Columbia direct
representation in the House of Representatives. The legislation
has two main features. First, it treats the District as a
congressional district for the purpose of granting full House
representation. Second, it permanently increases the size of
the House by two members, and allocates the second seat to
Utah, which was the state that was next in line to receive
additional representation after the 2000 census.
Legislative History.--Rep. Davis introduced H.R. 5388 on
May 16, 2006, and the bill was referred to the Committee on the
Judiciary and to the Subcommittee on the Constitution, as well
as to the Committee on Government Reform. On May 16, 2006, the
Committee on Government Reform held a markup on the bill and
ordered it reported favorably, without amendment, by a vote of
29 to 4. On September 14, 2006, the Subcommittee on the
Constitution held a legislative hearing on the bill at which
testimony was received from the Honorable Jon M. Huntsman, Jr.,
Governor of Utah; Dr. John Fortier, Research Fellow, American
Enterprise Institute; Mr. Adam Charnes, Partner, Kilpatrick
Stockton, LLP; and Professor Jonathan Turley, the J.B. &
Maurice C. Shapiro Professor of Public Interest Law at George
Washington University Law School. No further action on H.R.
5388 was taken.
H.R. 6258, the Americans with Disabilities Act Restoration Act of 2006.
Summary.--H.R. 6258, The Americans with Disabilities Act
Restoration Act of 2006, amends the definition of disability
currently set forth in the Americans with Disabilities Act 1990
(ADA) and makes other conforming amendments necessary to
reconcile the new definition with the remaining provisions
contained in the ADA. The amendments are necessary to address
certain Supreme Court decisions that have significantly limited
the reach of the ADA's protections. H.R. 6258 restores the ADA
to its original purpose, which is to provide a ``clear and
comprehensive national mandate for the elimination of
discrimination against individuals with disabilities,'' in
order to ensure that all Americans, including those individuals
with actual, recorded, or perceived physical and mental
impairments, experience the full rights of citizenship as
guaranteed and protected by the Constitution.
Legislative History.--H.R. 6258, was introduced by Chairman
Sensenbrenner, together with Mr. Hoyer, on September 29, 2006.
Earlier in the month, the Subcommittee held a hearing on this
legislation, titled ``The Americans with Disabilities Act:
Sixteen Years Later.''
Oversight Activities
SUMMARY OF OVERSIGHT PLAN
The Oversight Plan for the Constitution Subcommittee for
the 109th Congress includes the following issues: the death
penalty; the United States Commission on Civil Rights; the
Civil Rights Division, U.S. Department of Justice; the
Community Relations Service; Congressional authority under the
Commerce Clause; the Office of Government Ethics; gender
discrimination; property rights; religious liberty; abortion;
civil liberties in the war on terrorism; DNA technologies;
racial profiling; the consent decree in Pigford v. Glickman;
the Freedom of Access to Clinic Entrances (FACE) Act; marriage;
NCAA Due Process; the protections afforded an individual's
right to bear arms under the Second Amendment; the role the
United States Constitution plays in the development of
potential newly-formed democratic constitutions; and the
possibility of expanding eligibility for the Office of the
President to include foreign-born citizens.
Oversight list of hearings
U.S. Department of Justice Civil Rights Division: A Review
of the Civil Rights Division for the Purpose of the
Reauthorization of the U.S. Department of Justice. March 10,
2005. (Serial No. 109-45).
Fiscal and Management Practices of the United States
Commission on Civil Rights. March 17, 2005. (Serial No. 109-
22).
Economic Development and the Dormant Commerce Clause: the
Lessons of Cuno v. Daimler Chrysler and Its Effect on State
Taxation Affecting Interstate Commerce.'' May 24, 2005. (Serial
No. 109-27).
Can Congress Create a Race-Based Government? The
Constitutionality of H.R. 309/S. 147. July 19, 2005. (Serial
No. 109-37).
The Supreme Court's Kelo Decision and Potential
Congressional Responses. September 22, 2005. (Serial No. 109-
60).
Voting Rights Act: To Examine the Impact and Effectiveness
of the Act. October 18, 2005. (Serial No. 109-70).
Voting Rights Act: An Examination of the Scope and Criteria
for Coverage Under the Special Provisions of the Act. October
20, 2005. (Serial No. 109-68).
Voting Rights Act: Section 5 of the Act--History, Scope,
and Purpose. October 25, 2005. (Serial No. 109-79).
Voting Rights Act: The Continuing Need for Section 5.
October 25, 2005. (Serial No. 109-75).
Voting Rights Act: Section 5--Preclearance Standards.
November 1, 2005. (Serial No. 109-69).
Pain of the Unborn. November 1, 2005. (Serial No. 109-57).
Voting Rights Act: Section 203--Bilingual Election
Requirements (Part I). November 8, 2005. (Serial No. 109-83).
Voting Rights Act: Section 5--Judicial Evolution of the
Retrogression Standard. November 9, 2005. (Serial No. 109-74).
Voting Rights Act: Section 203--Bilingual Election
Requirements (Part II). November 9, 2005. (Serial No. 109-78).
Voting Rights Act: Sections 6 and 8--The Federal Examiner
and Observer Programs. November 15, 2005. (Serial No. 109-77).
Scope and Myths of Roe v. Wade. March 2, 2006. (Serial No.
109-84).
Voting Rights Act: Evidence of Continued Need. March 8,
2006. (Serial No. 109-103).
Personal Information Acquired by the Government from
Information Resellers: Is There Need for Improvement? April 4,
2006. (Serial No. 109-98).
The Constitution and the Line Item Veto. April 27, 2006.
(Serial No. 109-102).
The Implementation of the Crime Victims' Rights Provisions
of the Justice for All Act. June 21, 2006 (Serial No. 109-144).
The Americans with Disabilities Act of 1990: Sixteen Years
Later. September 13, 2006 (Serial No. 109-146).
Field briefing examining the current state of Civil Rights within the
United States Department of Agriculture
A field briefing was held in Cincinnati, Ohio on February
28, 2005, to examine the current state of civil rights within
the United States Department of Agriculture (USDA) in light of
the 1999 Pigford v. Glickman Settlement. In particular, the
briefing examined the status of civil rights violations that
the settlement was intended to address and the changes the USDA
has implemented to prevent future civil rights violations from
occurring. Attending the field briefing was the Honorable
Vernon Parker, Assistant Secretary of the Department of
Agriculture for Civil Rights; Mr. John Boyd, President,
National Black Farmer Association; Mr. George Hildebrant, Jr.,
President, Kansas Black Farmer Association; and Mr. Charlie
Winburn, Commissioner, Ohio Civil Rights Commission.
Assistant Secretary Parker discussed, among other things,
the steps the USDA Office of Civil Rights (OCR) had taken to
assist minority farmers, including holding listening sessions
across the country. Assistant Secretary Parker discussed the
current grievance process in place within USDA's OCR that was
designed to resolve minority farmer complaints on a more timely
basis.
Mr. Hildebrant discussed, among other things, the plight of
black farmers and the need for additional help from USDA and
the Farm Service Agency (FSA), the agency that is responsible
for administering the loan programs, to protect black farmers.
Mr. Boyd discussed the history of black farmers, the
ineffectiveness of the Pigford v. Glickman Consent Decree, and
the need for Congress to intervene on behalf of black farmers.
Mr. Winburn discussed the possible role for States' Civil
Rights Commissions working with minority farmers to ensure that
discrimination does not continue to occur.
Oversight hearing on the ``U.S. Department of Justice Civil Rights
Division: A review of the Civil Rights Division for the purpose
of reauthorization of the U.S. Department of Justice''
The Subcommittee held its first oversight hearing over the
U.S. Department of Justice's Civil Rights Division of the 109th
Congress on March 10, 2005. Testifying at the hearing was the
Honorable Alexander Acosta, Assistant Attorney General, Civil
Rights Division, Department of Justice. Assistant Attorney
General Acosta presented testimony to the Subcommittee on the
following issues: section 14141 of the 1994 Violent Crime and
Law Enforcement Act (investigating the patterns and practices
of violations of federally protected rights by law enforcement
officers and evaluating the progress made by the City of
Cincinnati Police Department under the Memorandum of
Understanding with the Department of Justice); the Help America
Vote Act (``HAVA'') and its accessibility requirements to
assist disabled voters; the Prison Rape Elimination Act; the
Human Trafficking and Protection Act of 2000 and the progress
made by the Administration since it began its trafficking
initiative; Executive Order 13166 (Administration requirements
that guidance be issued to assist recipients who administer
federally funded programs); efforts to prosecute voting
irregularities and fraud; preclearance of voting changes under
Section 5 of the Voting Rights Act; investigations and
prosecutions of discrimination in places of public
accommodation, housing, and employment; enforcement of Title
VII of the Civil Rights Act of 1964 as it relates to exemptions
for religious organizations; enforcement of the Civil Rights of
Institutionalized Persons Act of 1980 (CRIPA); and the Civil
Rights Division's progress toward terminating existing school
desegregation consent decrees and court orders issued during
the 1960s and 1970s.
Oversight hearing on the ``Fiscal and Management Practices of the
United States Commission on Civil Rights''
The Subcommittee on the Constitution continued its
oversight of the United States Commission on Civil Rights
(USCCR) by holding an oversight hearing on March 17, 2005, on
the ``Fiscal and Management Practices of the United States
Commission on Civil Rights.'' Testifying at the hearing was Mr.
Russell G. Redenbaugh, Commissioner, United States Commission
on Civil Rights; Mr. Kenneth Marcus, Staff Director, United
States Commission on Civil Rights; Mr. Michael Yaki,
Commissioner, United States Commission on Civil Rights; and Mr.
George Harbison, Director of Human Resources and Acting Chief
of Budget and Finance, United States Commission on Civil
Rights.
Commissioner Redenbaugh announced his resignation from the
USCCR at the outset of the hearing. Chief among the reasons for
his resignation was the lack of purpose and process guiding the
management of the USCCR. Commissioner Redenbaugh testified that
USCCR considers itself immune from accountability and
oversight, such that the USCCR is unable to reform itself.
Commissioner Yaki disagreed with Commissioner Redenbaugh's
assessment that the USCCR was beyond assistance. Commissioner
Yaki testified, among other things, that he believed that the
USCCR has played a role in ``provoking debate, discussion, and
made policymakers stand up and take notice,'' such that the
USCCR still has a public mission to perform and should continue
to exist. Commissioner Yaki testified that the USCCR was
currently working to implement all of the GAO recommendations
necessary to reform the agency.
Staff Director Marcus testified that the USCCR was working
under new leadership and was committed to reform. Staff
Director Marcus testified that in the few short months since
his arrival the USCCR had moved to implement some of the GAO
recommendations. In addition, Staff Director Marcus testified
that the USCCR was working to put together working groups on
reform and project planning in order to more effectively study
and recommend ways to better the management of the USCCR and
the quality and credibility of its work product.
Mr. Harbison presented testimony on his responsibilities at
the USCCR as Chief of Budget & Finance. In particular, Mr.
Harbison testified to the financial and management practices
and processes utilized by the former USCCR leadership,
including the successful attempts by past leadership to move
all financial and management responsibilities with the Office
of the Staff Director.
In addition to its oversight hearing, the Subcommittee
continued to monitor the activities of the USCCR throughout
2005 and 2006 in a number of different ways. First, the
Subcommittee Chairman conducted an interview with former Staff
Director Les Jin on June 27, 2005, to better ascertain the
financial practices adhered to by the USCCR leadership during
the years 1996-2004, which led to the USCCR's current financial
difficulties. This meeting was held in place of issuing a
subpoena compelling the appearance of former Staff Director Les
Jin before the Subcommittee. In addition, since late November
2005, the Subcommittee has monitored the development of the
USCCR's strategic plan. On November 14, 2005, the Subcommittee
expressed concerns to the USCCR about the draft strategic plan
being circulated and made recommendations to the USCCR on ways
to strengthen its plan. A follow-up letter was sent to the
USCCR on December 19, 2005, inquiring on the progress made by
the USCCR in revising the strategic plan. On January 23, 2006,
Subcommittee staff met with representatives from GAO and the
USCCR to facilitate the creation of an effective strategic
plan. Despite continued follow-up as recently as July 31, 2006,
the USCCR has yet to submit a strategic plan to the
Subcommittee.
In addition to the Committee's oversight activities, GAO
was tasked with its third and final investigation into the
management operations and practices of the USCCR in April 2005.
On June 1, 2006, GAO issued its third report, titled ``The U.S.
Commission on Civil Rights: The Commission Should Strengthen
Its Quality Assurance Policies and Make Better Use of Its State
Advisory Committees,'' which addressed the following areas of
concern: (1) the adequacy of the USCCR's policies for ensuring
the quality of its work; and (2) the role of the USCCR's State
Advisory Committees (SACs) in contributing to its work. GAO
concluded that policies were lacking within the USCCR to ensure
the credibility of its work.
Joint oversight hearing on ``Economic Development and the Dormant
Commerce Clause: the lessons of Cuno v. Daimler Chrysler and
its effect on State taxation affecting interstate commerce''
On May 24, 2005, the House Subcommittee on the Constitution
and the Subcommittee on Commercial and Administrative Law
conducted a joint oversight hearing on ``Economic Development
and the Dormant Commerce Clause: the Lessons of Cuno v.
DaimlerChrysler and Its Effect on State Taxation Affecting
Interstate Commerce.'' In Cuno v. DaimlerChrysler, Inc., the
Sixth Circuit held that portions of Ohio's tax code were
unconstitutional on the grounds that they violated the Dormant
Commerce Clause.\1\ At issue was Ohio's franchise tax credit
for companies that chose to ``[purchase] new manufacturing
machinery and equipment during the qualifying period, provided
that the new manufacturing machinery and equipment are
installed in [Ohio].'' \2\ Under the terms of the tax credit
and a related property tax exemption,\3\ DaimlerChrysler was to
obtain approximately $280 million in tax relief over ten years
for investing approximately $1.2 billion in a new vehicle
assembly plant that would generate approximately 5,000 new jobs
in Toledo, Ohio.\4\
---------------------------------------------------------------------------
\1\ Cuno v. DaimlerChrysler, Inc., 386 F.3d 738 (6th Cir. 2004),
vacated in part by DaimlerChrysler Corp. v. Cuno, 126 S.Ct. 1854
(2006).
\2\ Ohio Rev. Code Ann. Sec. 5733.33(B)(1).
\3\ The property tax exemption was upheld against challenges under
the Dormant Commerce Clause and the Equal Protection clause of the Ohio
Constitution. Cuno, 386 F.3d at 748-49.
\4\ Id. at 741; see also Gregory Castanias, National Movement
Against Economic-Development Incentives Makes Inroads in the Sixth
Circuit and Raises Questions About Similar Incentives Elsewhere, Mondaq
Bus. Briefing, Feb. 7, 2005, available at http://www.mondaq.com/
article.asp?articleid=30851&searchresults=1.
---------------------------------------------------------------------------
The purpose of the hearing was to explore the scope of the
Dormant Commerce Clause vis-a-vis state tax credits, and the
implications of the Sixth Circuit's decision in Cuno v.
DaimlerChrysler on that body of law. The hearing also examined
Congress' ability to pass legislation that renders such State
statutory schemes lawful and examine the impact these tax
credits have on promoting business development in economically
depressed areas.
The following witnesses appeared at the hearing: the
Honorable Bruce Johnson, Lieutenant Governor of the State of
Ohio; Ms. Michele R. Kuhrt, Director of Taxes and Financial
Administration for Lincoln Electric; Professor Walter
Hellerstein, Francis Shackelford Distinguished Professor of
Taxation Law, University of Georgia School of Law; and
Professor Edward A. Zelinsky, Benjamin N. Cardozo School of
Law, Yeshiva University, New York, New York.
Lieutenant Governor Johnson testified that economic
development incentives, like those at issue in the Cuno case,
are necessary for states to compete against other states and
foreign nations to attract businesses to the area. He further
testified that if these incentives are held unconstitutional,
Ohio will lose jobs and income to other countries.
Ms. Kuhrt testified that economic incentives play an
important role in determining where her company, Lincoln
Electric, chooses to open new operations. She testified that
Ohio's investment credits were the deciding factor in her
company's decision to expand its operations outside of
Cleveland. Those expansions created 481 new jobs, and, in her
opinion, the new tax revenue generated from those new employees
would significantly compensate the state of Ohio for the one-
time incentives that the state gave Lincoln Electric, thus
making it a wise business decision for the state.
Professor Hellerstein testified that the Sixth Circuit's
opinion in Cuno was not unusual in the sense that courts had
invalidated a number of state tax schemes on Dormant Commerce
Clause grounds. Professor Hellerstein also testified that
courts' interpretations of the Dormant Commerce Clause have
been ``difficult to discern.'' For that reason, Professor
Hellerstein testified that the Congress could and should
address the validity of the tax incentives at issue in Cuno
under Congress' affirmative Commerce Clause authority.
Professor Zelinsky testified that the Sixth Circuit decided
Cuno wrongly on the grounds that there was no principled way to
distinguish between the state tax incentives that the Court had
struck down as opposed to the property tax incentives that it
had upheld. Professor Zelinsky also supported the view that
Congress should overturn Cuno legislatively.
Oversight hearing on ``Can Congress Create a Race-Based Government? The
Constitutionality of H.R. 309/S. 147''
On July 19, 2005, the Subcommittee on the Constitution held
an oversight hearing examining whether Congress has the
authority to create a raced-based government. In particular,
the Subcommittee examined the constitutionality of H.R. 309,
and its companion S. 147, the Native Hawaiian Government
Reorganization Act of 2005. Witnesses presenting testimony to
the Subcommittee included: the Honorable Mark Bennett, Attorney
General, State of Hawaii; Mr. Shannen Coffin, Former Deputy
Assistant Attorney General for Federal Programs, Department of
Justice and current law partner, Steptoe & Johnson, LLP; Mr. H.
William Burgess, retired attorney and grassroots advocate for
Aloha for All, Inc.; and Mr. Bruce Fein, constitutional law
expert and former Assistant Director, Office of Legal Policy,
Department of Justice.
Attorney General Bennett testified on the constitutionality
of H.R. 309 and the benefits that a Native Hawaiian government
would bring to the Native Hawaiian people. Attorney General
Bennett testified that since 1910 Congress has passed more than
160 pieces of legislation recognizing the special status of
Native Hawaiians and that H.R. 309 provides a political status
to Native Hawaiians that is no different from the status
afforded to Native Americans.
Mr. Coffin testified, among other things, that the Supreme
Court has noted that the use of race and ancestry to
distinguish citizens is subject to strict scrutiny, and such
legislation will be upheld only if it is narrowly tailored to
achieve a compelling state interest. Mr. Coffin also referenced
the Supreme Court's decision in Rice v. Cayetano, in which the
Court rejected similar legislation enacted by the State of
Hawaii. In Cayetano, the Supreme Court declined to apply the
tribal concept, which has been the basis of recognizing Native
American tribes as quasi-sovereign entities.
Mr. Burgess presented testimony on the history of Hawaii
and the historical differences between the assimilation of
Native Hawaiians into western civilization and the existence of
Native Americans as autonomous quasi-sovereign governing
entities prior to the discovery and cultivation of American
society. In particular, Mr. Burgess reminded the Subcommittee
that upon admittance to the Union, the State of Hawaii
considered itself ``the melting pot of many racial and national
origins from which has been produced a common nationality, a
common patriotism, a common faith in freedom and in the
institutions of America.''
Mr. Fein testified, among other things, that Congress does
not have the affirmative power to create a race-based
government, where none existed before. Mr. Fein noted the
differences between the treaties negotiated with Native
American tribes both prior to and after the Constitution was
ratified and the treaties negotiated between the United States
and the Kingdom of Hawaii finding that the treaties ratified
with the Kingdom of Hawaii were replicas of the treaties
ratified with France and Britain (i.e., the treaties recognized
the Kingdom as a foreign nation).
Oversight hearing on ``The Supreme Court's Kelo Decision and Potential
Congressional Responses''
On September 22, 2005, the Subcommittee on the Constitution
held on oversight hearing on ``The Supreme Court's Kelo
Decision and Potential Congressional Responses.'' Witnesses
included: Ms. Dana Berliner, Senior Attorney, Institute for
Justice; Mr. Michael Cristofaro, Resident, New London,
Connecticut; Mr. Hilary O. Shelton, Director, NAACP, Washington
Bureau; and Mr. Bart Peterson, Mayor, City of Indianapolis,
Indiana.
Ms. Berliner testified, among other things, that eminent
domain affects real people. Real people lose the homes they
love and watch as they are replaced with condominiums. Real
people lose the businesses they count on to put food on the
table and watch as they are replaced with shopping malls. And
all this happens because localities find condos and malls
preferable to modest homes and small businesses. Federal law
currently allows expending federal funds to support
condemnations for the benefit of private developers. By doing
so, it encourages this abuse nationwide. Using eminent domain
so that another, richer, better-connected person may live or
work on the land you used to own tells Americans that their
hopes, dreams and hard work do not matter as much as money and
political influence. The use of eminent domain for private
development has no place in a country built on traditions of
independence, hard work, and the protection of property rights.
Mr. Cristofaro testified, among other things, that Congress
needs to send a strong message to municipalities that tear down
working class neighborhoods to replace them with office
buildings or a big-box retailer: if you do so, you will not
receive federal tax dollars for economic development. By doing
this, Congress would be protecting families like Mr.
Cristofaro's who simply want to keep the homes they love.
Mr. Shelton testified, among other things, that the Supreme
Court's decision in Kelo v. City of New London will prove to be
especially harmful to African Americans and other racial and
ethnic minority Americans. By allowing pure economic
development motives to constitute public use for eminent domain
purposes, state and local governments will now infringe on the
property rights of those with less economic and political power
with more regularity. These groups, all low-income Americans,
and a disparate number of African Americans and other racial
and ethnic minority Americans, are the least able to bear this
burden.
Mr. Peterson testified, among other things, that economic
development is a public use. By subjecting development projects
to public debate and by planning these projects with the public
welfare in mind, eminent domain allows cities and their
citizens to develop the community in a way that is transparent
and beneficial for all. Municipal leaders have a responsibility
to engage in public conversation about eminent domain that can
help dispel inaccuracies and stereotypes. There is, however, a
delicate balance between minimizing the burdens on individuals
and maximizing benefits to the community. The art of compromise
is essential to going forward.
Oversight hearing on the ``Voting Rights Act: To Examine the Impact and
Effectiveness of the Act''
On October 18, 2005, the Subcommittee held the first of ten
oversight hearings on the Voting Rights Act of 1965 (VRA). The
first hearing examined the impact of the VRA on minority voters
and its effectiveness in stopping discrimination over the last
41 years. The Subcommittee took testimony from four witnesses
including: the Honorable Jack Kemp, former Secretary of Housing
and Urban Development and former Member of the House of
Representatives; the Honorable Marc Morial, President and CEO,
National Urban League, Ms. Ann Marie Tallman, President and
General Counsel, Mexican American Legal Defense and Education
Fund; and the Honorable Joe Rogers, Former Lieutenant Governor,
State of Colorado.
Secretary Kemp testified that the right to vote and to
participate in the political process is the most fundamental
right of our democratic system of government. Secretary Kemp
testified that the VRA is the most important civil rights
legislation that the nation has ever enacted in the past 40
years and if it is not reauthorized local and State
jurisdictions will more easily be able to discrimination
against minority voters.
Mr. Morial testified, among other things, on the impact
that the VRA has had on him, his family, and his hometown of
New Orleans, Louisiana. Mr. Morial testified that the State of
Louisiana did not have an African American representative until
1967, despite the fact that African Americans made up almost a
third of the population. The VRA enabled his father to become
the first serving elected African American in 1967 since
reconstruction. Mr. Morial emphasized that without the VRA it
would have been highly unlikely that he, his father, or any of
the many other African American elected officials would be
where they are today.
Ms. Tallman testified, among other things, that the VRA has
done more than any other law to ensure that the nation moved
beyond discriminatory election laws that have tarnished the
electoral process. However, Ms. Tallman emphasized that the VRA
is still needed. Ms. Tallman testified that the VRA has
facilitated the participation of Latinos/Latinas in the
electoral process at all levels of government. In addition to
the benefits of Section 5--preclearance, Ms. Tallman emphasized
the need to continue Section 203, the bilingual assistance
provisions, which have assisted the more than 4.3 million
voting age citizens who are limited English proficient and in
need of assistance.
Lieutenant Governor Rogers testified, among other things,
on the work that was being conducted by the National Commission
on the Voting Rights Act (Commission), which was established by
the Lawyers' Committee For Civil Rights Under Law for the sole
purpose of examining the effectiveness and continuing needs for
the Voting Rights Act. Lieutenant Governor Rogers discussed the
hearings being conducted by the Commission and the evidence
received by the Commission to date. Lieutenant Governor Rogers
told the Subcommittee that according to the evidence presented,
discrimination in voting appears to be significant, although
progress has been made. In addition, Rogers testified that
racially polarized voting continues to plague elections
throughout the country and although Section 2, a permanent
provision, is effective, Section 5 remains a necessary
provision to ensure that discriminatory voting procedures are
not implemented in the first place.
Oversight hearing on the ``Voting Rights Act: An Examination of the
Scope and Criteria for Coverage Under the Special Provisions of
the Act''
On October 20, 2005, the Subcommittee on the Constitution
held the second of ten hearings examining the Voting Rights Act
of 1965 (VRA). The second hearing examined the coverage
formula, which is set forth in Section 4(b) of the VRA and is
used to identify States and jurisdictions for coverage, and the
bailout process that covered states and jurisdictions are able
utilize to terminate coverage. Testifying at the hearing was:
the Honorable Michael Steele, Lieutenant Governor, the State of
Maryland; Mr. Jose Garza, Voting Rights Attorney, League of
United Latin American Citizens (LULAC); Mr. Armand Derfner,
voting rights attorney, Derfner, Altman & Wilborn; and Mr. J.
Gerald Hebert, Former Acting Chief, Civil Rights Division,
Department of Justice.
Lieutenant Governor Steele testified, among other things,
on the impact that the VRA and Section 5's preclearance
requirements have had on non-covered jurisdictions,
particularly illustrating to non-covered jurisdictions the
types of election practices and redistricting plans that the
Department of Justice and District Court for the District of
Columbia find to be discriminatory.
Mr. Garza presented the record that LULAC had compiled to
date, through its litigation efforts, on the history of
discrimination against Latinos in the voting process. In
particular, Mr. Garza testified that many of the same
discriminatory practices that occurred against African
Americans in the South were used against Mexican Americans in
the State of Texas. Mr. Garza emphasized that these practices
were not only used in 1954 and 1964 but were also used in 1984.
As a result, the need for Section 5 continues, especially in
the State of Texas.
Mr. Derfner testified, among other things, to the
importance of the VRA and the importance of Section 4, which
sets forth the formula for coverage. Mr. Derfner discussed the
importance of: (1) enacting Section 4 in order to prohibit the
problems that Congress could identify (i.e., literacy tests and
other devices); as well as (2) enacting the provisions Section
4 triggers, such as Section 5 and Sections 6 through 8, in
order to address problems that Congress could not yet identify.
Under this structure, Mr. Derfner testified the VRA remains an
effective tool to protecting minority voters.
Mr. Hebert testified on the effectiveness of the current
bailout process. Mr. Hebert testified that the ten-year time
frame in which a jurisdiction must demonstrate a clean record
in order to terminate coverage (i.e., that it has not had a
test or device in place, no final judgements, no objections, no
examiners, compliance with all voting requirements, and
constructive efforts to integrate the minority community into
the electoral process) continues to be an appropriate process
and easy to meet if a jurisdiction is serious about bailout.
Moreover, Mr. Hebert emphasized that the effectiveness of the
bailout provision is central to demonstrating the
constitutionality of the VRA.
Oversight hearing on the ``Voting Rights Act: Section 5 of the Act--
History, Scope, and Purpose''
On October 25, 2005, the Subcommittee on the Constitution
held the third of ten oversight hearings on the Voting Rights
Act of 1965 (VRA). The hearing focused on Section 5 of the
Voting Rights Act and the effectiveness of the preclearance
requirement in stopping and deterring discriminatory voting
changes from being enacted. Testifying at the hearing was: the
Honorable Bradley Schlozman, Acting Assistant Attorney General,
Civil Rights Division, Department of Justice; Mr. Edward Blum,
Visiting Fellow, American Enterprise Institute; Ms. Anita
Earls, Director of Advocacy, Center for Civil Rights; Ms. Nina
Perales, Regional Counsel, Mexican American Legal Defense and
Education Fund.
Assistant Attorney General Schlozman provided an overview
of the Department of Justice's role in administering Section 5.
In particular, Assistant Attorney General Schlozman presented
testimony that the Department of Justice receives between
4,000-6,000 submissions annually from covered jurisdictions, in
which redistricting plans comprise a small part. Assistant
Attorney Schlozman testified that the Department of Justice's
role in the administrative process is to review voting changes
to ensure that they are not retrogressive within the 60-day
period set forth by Section 5.
Mr. Blum testified, among other things, that American
society has reached a point where the VRA is no longer
necessary. Mr. Blum testified that a study commissioned by the
American Enterprise Institute (AEI) demonstrated that minority
registration and turnout exceeded that of white voters in the
covered State of Georgia and minority and white candidates
receive comparable support from minority and white voters to
such an extent that Section 5 is no longer needed to protect
minority voters. Moreover, if problems continue to exist all
over the country, Mr. Blum testified that limiting preclearance
requirements to just a few States and jurisdictions was not
sound policy.
Ms. Earls testified, among other things, that the original
purpose of Section 5 has not been fully served. In particular,
Ms. Earls testified that the lingering effects of past
intentional discrimination continue today and are illustrated
by the continued prevalence of racially polarized voting,
cracking and packing of minority voters when drawing district
lines, and the implementation of methods to dismantle single-
member districts. Ms. Earls emphasized that Section 5 was
intended to remedy nearly 100 years of discrimination in which
certain jurisdictions undermined the decision of Federal courts
and enforcement efforts of the Federal government. Ms. Earls
testified that the discriminatory practices of the past
continued to be enacted by local and State governments such
that Section 5 is still needed. In addition, Ms. Earls
testified on the important deterrent effect that Section 5 has
on preventing discriminatory voting changes from coming to
fruition.
Ms. Perales testified, among other things, on the
importance of Section 5 in Texas and other parts of the
Southwest. Ms. Perales presented testimony on the history of
discrimination experienced by Latinos in Texas and the
Southwest, particularly at the local level. Ms. Perales
testified that since 1975, there have been 196 objections
interposed by the Department of Justice in Texas. Most of the
objections were to voting changes enacted at the local level.
Ms. Perales also testified on the impact that the 2003 Supreme
Court decision in Georgia v. Ashcroft had on the ability of
Section 5 to protect minority voters. In particular, Ms.
Perales testified that the existence of racially polarized in
elections makes it virtually impossible for minority voters to
have any sort of influence on the outcome of an election or the
representative who is ultimately elected.
Oversight hearing on the ``Voting Rights Act: The Continuing Need for
Section 5''
On October 25, 2005, the Subcommittee on the Constitution
held the fourth of ten oversight hearings on the Voting Rights
Act of 1965 (VRA). The hearing focused on Section 5's
preclearance requirement, including examining the standard for
evaluating Section 5 preclearance submissions as set forth by
the Supreme Court in Beer v. United States. Testifying at the
hearing was Mr. Laughlin McDonald, Executive Director, Voting
Rights Project, ACLU; Mr. Robert Hunter, Jr., Voting Rights
Attorney and Former Chairman of the North Carolina Board of
Elections, Hunter, Higgins, Elum, and Benjamin, PLLC; Mr.
Ronald Keith Gaddie, Professor of Political Science, University
of Oklahoma; and Dr. Richard Engstrom, Professor of Political
Science and African Studies, University of New Orleans.
Mr. McDonald presented testimony on the continued need for
Section 5. Mr. McDonald indicated that there is abundant
modern-day evidence demonstrating that Section 5 is still
needed. Mr. McDonald testified that the need for Section 5 was
most demonstrably found in Indian Country, where there are
hundreds of examples of efforts to discriminate against Native
Americans in the electoral process.
Mr. Hunter testified that in his experience as a voting
rights practitioner three recent Supreme Court decisions,
Bossier I, Bossier II, and Georgia v. Ashcroft, had modified
the purpose and effect prongs of Section 5. Mr. Hunter
indicated that Congress needed to focus on the communities that
had been historically disenfranchised and the impact that such
discriminatory voting laws would have on these voters if
Section 5 was not reauthorized.
Professor Gaddie testified on the research that he had been
conducting with his colleague Professor Charles Bullock on
behalf of American Enterprise Institute (AEI). Professor Gaddie
indicated that his study demonstrated significant progress
among minority participants in the political process. This
progress is revealed in increased registration and turnout
rates among racial and language minority citizens. Professor
Gaddie testified that these increased rates of participation
suggest that Section 5 may have outlived its usefulness.
Dr. Engstrom testified that Section 5 is a fundamental
protection against minority vote dilution in covered
jurisdictions. Dr. Engstrom described vote dilution as a second
generation barrier to voting experienced by minorities. (First
generation barriers involve those techniques and practices that
directly prevent minorities from casting ballots). Dr. Engstrom
testified that vote dilution is impacted by racially polarized
voting, which is a prominent feature of elections in the South.
Dr. Engstrom testified that racially polarized voting continues
today, thus demonstrating the continued need for Section 5.
Oversight hearing on ``Pain of the Unborn''
On November 1, 2005, the Subcommittee on the Constitution
held an oversight hearing on ``Pain of the Unborn.'' The
witnesses included: Dr. Sunny Anand, Director, Pain
Neurobiology Laboratory, Arkansas Children's Hospital Research
Institute, and Professor of Pediatrics, Anesthesiology,
Pharmacology, and Neurobiology, University of Arkansas College
of Medicine; Dr. Jean Wright, Professor and Chair of
Pediatrics, Mercer School of Medicine; Dr. Arthur Caplan,
Director, Center for Bioethics, and Chair, Department of
Medical Ethics, University of Pennsylvania; Ms. Teresa S.
Collett, Professor of Law, University of St. Thomas School of
Law.
Dr. Sunny Anand testified, among other things, that a study
concluding that fetal perception of pain is unlikely before 29
to 30 weeks of human gestation was flawed ``because [the
authors] ignore a large body of research related to pain
processing in the brain, present a faulty scientific rationale
and use inconsistent methodology for their systematic review.''
Dr. Jean Wright testified, among other things, that
viability has been pushed back to 23-24 weeks for some infants,
that there is a disconnect between the treatment of pain in the
neonate and pain in the fetus, and that treating the mother for
pain is not enough for the child.
Dr. Arthur Caplan testified, among other things, that there
``is an enormous body of evidence which shows that the
presumption of medical consensus does not exist about the
question of when a fetus becomes pain-capable'' and that
``mandating the specific nature of what must be communicated to
a woman considering an abortion or any other medical procedure
is an unwise interference with the practice of medicine by
Congress.''
Professor Teresa S. Collett testified, among other things,
that the issue of at what point the unborn experience pain is
an important one that should inform medical practice and that
the most recent abortion textbook for medical schools advises
that women seeking abortions be given information about fetal
pain.
Oversight hearing on the ``Voting Rights Act: Section 5--Preclearance
Standards''
On November 1, 2005, the Subcommittee on the Constitution
held the fifth of ten oversight hearings on the Voting Rights
Act. The hearing continued to focus on Section 5's preclearance
requirement that a voting change submission can only be
precleared if it does not have the purpose or effect of denying
or abridging a citizen's right to vote on account of race,
color, or language minority status, with a particular focus on
the impact of the Supreme Court's decision in Reno v. Bossier
Parish (Bossier II). Witnesses presenting testimony to the
Subcommittee included: Professor Mark Posner, Adjunct
Professor, American University, Washington College of Law, and
Former attorney, Civil Rights Division, Department of Justice;
Ms. Brenda Wright, Managing Attorney, National Voting Rights
Institute; Mr. Roger Clegg, Vice President and General Counsel,
Center for Equal Opportunity and Former Assistant to the
Solicitor General, Department of Justice; and Mr. Jerome A.
Gray, State Field Director, Alabama Democratic Conference.
Professor Posner presented testimony describing the need
for Congress to reauthorize Section 5 as well as legislatively
reverse the interpretation of Section 5's purpose prong by the
Supreme Court in Bossier II as part of its reauthorization
effort. Professor Posner indicated that Section 5's purpose
prong had been consistently interpreted as preventing changes
made with a discriminatory purpose from being precleared under
Section 5 for nearly 34 years. According to Professor Posner,
the Supreme Court in Bossier II misconstrued the purpose prong
allowing almost any voting change made with a racial motive to
be precleared, contrary to Congress's original intent.
Ms. Wright testified, among other things, that a successful
reauthorization must include restoring Section 5 to prevent
voting changes made with a discriminatory purpose from being
precleared. Ms. Wright testified that through the 1970s and
1980s it was clear that the purpose and effect prongs contained
in Section 5 were independent of each other until the Bossier
II case. Under the current Supreme Court interpretation, Ms.
Wright testified that those jurisdictions that had never
adopted a majority-minority district were free to continue to
intentionally draw minorities out of a redistricting map. These
actions, Ms. Wright testified, are contrary to the original
purpose of Section 5.
Mr. Clegg testified, among other things, that the Bossier
II decision is correct and that in the larger discussion of
reauthorization, Section 5 and the other expiring provisions
should not be reauthorized. Mr. Clegg testified that if
Congress decides to overturn Bossier II it runs the risk of
having Section 5 struck down as unconstitutional, as Justice
Scalia alluded in his Bossier II opinion.
Mr. Gray testified, among other things, on the impact that
the VRA has had on the State of Alabama. In particular, Mr.
Gray testified to the benefits of Section 5 in deterring
jurisdictions from enacting discriminatory voting changes. Mr.
Gray testified that Section 5's preclearance requirement has
worked to integrate minority voters more fully into the voting
process, as covered jurisdictions seek the input of minority
voters early in the process to ensure that voting changes are
not retrogressive.
Oversight hearing on the ``Voting Rights Act: Section 203--Bilingual
Election Requirements''
On November 8, 2005, the Subcommittee on the Constitution
held the sixth of ten oversight hearings on the Voting Rights
Act of 1965 (VRA). The hearing was the first of two examining
the effectiveness of Section 203, the bilingual election
assistance provisions, added to the VRA in 1975. Testifying at
the hearing was the Honorable Bradley Schlozman, Acting
Assistant Attorney General, Civil Rights Division, Department
of Justice; Ms. Margaret Fung, Executive Director, Asian
American Legal Defense and Education Fund; Ms. Linda Chavez,
President, One Nation Indivisible, Inc.; and Ms. Rebecca Vigil-
Giron, Secretary of State, State of New Mexico.
Assistant Attorney General Schlozman provided an overview
of the Department of Justice's efforts to enforce Section 203's
bilingual assistance requirements. Assistant Attorney General
Schlozman testified that the Civil Rights Division has
undertaken the most extensive Section 203 and Section 4(f)(4)
enforcement effort in the history of the Department of Justice.
Assistant Attorney General Schlozman testified that notice and
detailed information on compliance requirements were sent by
the Department to each of the covered jurisdictions. In
addition, the Department initiated in-person meetings with
officials from newly covered jurisdictions. Since 2001, the
Department has filed more Sections 4(f) and 203 cases than were
filed in the previous 26 years.
Ms. Fung testified to Section 203's success, particularly
since the 10,000 threshold was inserted into Section 203's
coverage formula in 1992. Ms. Fung testified that Section 203's
assistance has enabled hundreds of thousands of language
minority citizens, particularly Asian Americans, to participate
in the political process and was instrumental in the election
of New York City's first Asian American city councilman and
first Asian American Member of the New York State Assembly.
Ms. Chavez testified, among other things, that Section 203
should not be extended. Ms. Chavez testified that Section 203's
requirements are wasteful, expensive, and are not widely used.
Morever, Ms. Chavez testified that Section 203's requirements
facilitate voter fraud. Ms. Chavez testified that many civil
rights groups, including the U.S. Commission on Civil Rights,
the Attorney General, and the Leadership Conference on Civil
Rights were opposed to extending the VRA to cover Hispanic and
other language minority citizens in 1975.
Ms. Vigil-Giron provided testimony on the State of New
Mexico's experience in providing bilingual election assistance
to language minority voters. Ms. Vigil-Giron testified that
Section 203 is the legal foundation for many Native American
and Hispanic citizens when exercising their right to vote.
Native Americans make up 10 percent of the total population of
New Mexico and Hispanics make up 42 percent, many of which do
not speak English. Ms. Vigil-Giron testified that the increased
turnout rates among Native Americans and Hispanics would not
have occurred if not for the VRA.
Oversight hearing on the ``Voting Rights Act: The Judicial Evolution of
the Retrogression Standard''
On November 9, 2005, the Subcommittee on the Constitution
held the seventh of ten oversight hearings on the Voting Rights
Act of 1965 (VRA). The hearing focused on Section 5's
preclearance requirement and the impact of the Supreme Court's
decision in Georgia v. Ashcroft on the preclearance standard.
Witnesses testifying before the Subcommittee included: Mr.
Theodore Shaw, President and Director-Counsel, NAACP, Legal
Defense and Education Fund, Inc.; Ms. Anne Lewis, voting rights
attorney, Strickland Brockington Lewis, LLP; Georgia State
Representative Tyrone Brooks, President, Georgia Association of
Black Elected Officials; and Mr. Laughlin McDonald, Executive
Director, Voting Rights Project, ACLU.
Mr. Shaw testified, among other things, that Section 5's
ability for minorities to elect their candidates of choice
standard has been at the core of the VRA. Mr. Shaw testified
that an assessment of the minority community's ability to elect
occurs most frequently in the context of single member
districts and racially polarized voting. Mr. Shaw testified
that the retrogression standard set forth by the Supreme Court
in Beer v. United States was the standard adopted by the Courts
and Congress for the last 30 years. Mr. Shaw testified that the
Supreme Court's decision in Georgia v. Ashcroft weakened this
standard by allowing covered jurisdictions to make a choice
between keeping districts where minorities can elect their
candidate of choice or dispersing minority voters to increase
minority influence among other candidates. Mr. Shaw testified
that Congress needed to restore Section 5 to the standard set
forth in Beer as part of its reauthorization efforts.
Ms. Lewis testified, among other things, that the standard
for preclearing voting changes was significantly weakened by
the Supreme Court's decision in Georgia v. Ashcroft and leaves
the standard impossible to apply.
Mr. Brooks testified on the importance of Section 5 to
minority voters in Georgia and the continued need for Section 5
as long as racially polarized voting plagues elections. Mr.
Brooks testified on the need for States to maintain majority-
minority districts, indicating influence districts, such as
those identified by the Supreme Court in Georgia v. Ashcroft,
can never be a substitute for majority-minority districts.
Mr. McDonald testified, among other things, that the
Supreme Court in Georgia v. Ashcroft took the Section 5
standard and turned it into a subjective and abstract standard.
In particular, Mr. McDonald testified that the minority
influence theory espoused by Supreme Court in Georgia v.
Ashcroft is nothing more than a guise for diluting minority
voting strength and the decision runs counter to Congress's
original intent in enacting Section 5. Mr. McDonald advocated
that any Reauthorization of Section 5 must also include
language that restores Section 5 to its original purpose.
Oversight hearing on the ``Voting Rights Act: Section 203--Bilingual
Election Requirements (Part II)''
On November 9 and 10, 2005, the Subcommittee held the
eighth of ten oversight hearings on the Voting Rights Act of
1965 (VRA). The hearing was the second of two hearings focusing
on the effectiveness of Section 203, the bilingual election
assistance provision. Testimony was taken from the following
witnesses: Ms. Jacqueline Johnson, Executive Director, National
Congress of American Indians; Mr. K.C. McAlpin, Executive
Director, ProEnglish; Mr. James Tucker, Attorney, Ogletree
Deakins, P.C., Adjunct Professor, Barrett Honors College of
Arizona State University, Phoenix, Arizona; and Mr. Juan
Cartagena, General Counsel, Community Service Society.
Ms. Johnson testified, among other things, on the benefit
of Section 203 to Indian Country over the last 31 years. Ms.
Johnson testified that Section 203 has facilitated numerous
enforcement filings that have worked to ensure that Native
Americans have access to the ballot box. Ms. Johnson testified
that in many Native communities tribal business is conducted
exclusively in the native language. Thus, many native people,
especially elders, need assistance when exercising their right
to vote.
Mr. McAlpin testified, among other things, that Section 203
is a costly, unfunded mandate that functions as a tax on
English-speaking Americans. Mr. McAlpin testified that Section
203 is not necessary since naturalization laws require
candidates to understand and speak English as part of the
naturalization process. Moreover, Mr. McAlpin testified that
Section 203 is an affront to the millions of English-speaking
immigrants and undermines our national unity. Mr. McAlpin
testified that Section 203 increases the risk of election fraud
by facilitating the concealment of illegal activity.
Mr. Tucker testified, among other things, that Section 203
remains a critical provision to the VRA. Mr. Tucker testified
to the constitutionality of Section 203 and Section 4(f)(4),
citing the Supreme Court's decision in Katzenbach v. Morgan as
the basis for the two Sections. In particular, Mr. Tucker
testified that the Supreme Court, in Katzenbach, held that it
was entirely appropriate for Congress to ``question whether a
denial of a right being so precious and fundamental in our
society was a necessary or appropriate means of encouraging
persons to learn English or furthering the goal of an
intelligent exercise of the franchise.'' Mr. Tucker further
testified that a recent study of the jurisdictions covered by
Section 203 revealed that the high costs of administering
Section 203's requirements had not materialized and that most
election officials support Section 203's requirements.
Mr. Cartagena testified, among other things, that Section
203 continues to be a viable and needed provision in 2005. Mr.
Cartagena testified that the full participation of Latino-
language minority citizens has yet to be achieved. Moreover,
Mr. Cartagena testified that jurisdictions continue to be
unwilling to provide full assistance to language minority
citizens, thus demonstrating the continued need for enforcement
and oversight by the Department of Justice. Mr. Cartagena
testified that 75% of the Latinos in the country speak a
language other than English at home, with more than 41%
speaking English less than very well and 23% not speaking
English at all, thus demonstrating the need for Section 203's
assistance.
Oversight hearing on the ``Voting Rights Act: Sections 6 and 8--The
Federal Examiner and Observer Program''
On November 15, 2005, the Subcommittee on the Constitution
held the ninth of ten oversight hearings on the Voting Rights
Act of 1965 (VRA). The hearing focused on the effectiveness of
Sections 6 and 8 of the VRA, the Federal examiner and Federal
observer provisions. Testimony was taken from three witnesses
including: Ms. Nancy Randa, Deputy Associate Director, Human
Resources and Services, U.S. Office of Personnel Management;
Ms. Penny Pew, Apache County Elections Director, State of
Arizona; and Mr. Barry Weinberg, Former Deputy Chief and Acting
Chief, Voting Section, Civil Rights Section, Department of
Justice.
Ms. Randa testified, among other things, on the role of OPM
in assigning Federal examiners and observers to monitor
elections in covered jurisdictions certified for monitoring.
Ms. Randa testified that since 1965 OPM has assigned more than
26,000 observers to a total of 21 States. Ms. Randa testified
that in the last ten years more observers have been deployed to
protect language minority citizens. Ms. Randa testified that
observers serve as neutral monitors, witnesses who do not
intervene but watch, listen, and record events in polling
locations. Ms. Randa testified that no voters have been added
to the Federal voter registration list since 1983 and no
challenges have been made to the voter list in 30 years,
diminishing the need for both Federal registrars and hearing
officers.
Ms. Pew provided testimony on the role Federal observers
have played in elections in Apache County, Arizona. Ms. Pew
testified that the Federal observer program has functioned as a
check and balance in Apache County's translator program.
Federal observers are able to witness poll workers and
interpreters assisting voters. Observers witness the process
and note events that occur throughout the voting process. Ms.
Pew testified that the information relayed by Federal observers
enables election officials to know instantaneously of
situations that can be rectified immediately or may need
further investigation.
Mr. Weinberg testified, among other things, on the
Department of Justice's role in the Federal examiner and
observer program. Mr. Weinberg testified that the Federal
examiner provisions are archaic, cumbersome, outdated, and no
longer serve a purpose. Mr. Weinberg testified that Federal
observers continue to be necessary, serving an important law
enforcement function. Mr. Weinberg testified that Federal
observers are the only Federal officials allowed inside polling
locations and are able to witness events that other Federal
officials are not. Mr. Weinberg described Federal observers as
the eyes and ears of the Justice Department in polling
locations and testified on the need to keep this Federal
oversight for an additional 25 years.
Oversight of detention facilities located in Guantanamo Bay, Cuba
Members of the House Judiciary Committee, including
Subcommittee Chairman Chabot, Subcommittee Ranking Member
Nadler, and Representative Gohmert, and Subcommittee counsel
traveled to Guantanamo Bay, Cuba (GTMO) on January 16, 2006, to
continue the Judiciary Committee's oversight responsibilities
on the treatment of military detainees being held at GTMO. The
trip is the third made by Members of the Judiciary Committee,
since 2002, to review GTMO operations. Earlier bipartisan trips
were made by Members of the Committee and counsel on May 4,
2003, which included Subcommittee Chairman Coble and
Representatives Schiff and Hart, and on February 8, 2002, by
Chairman Sensenbrenner. In addition to monitoring
interrogations and the living conditions of military detainees,
the trip provided Members of the Judiciary Committee with an
opportunity to discuss the impact of: (1) the June 2004 Supreme
Court decision, Rasul v. Bush,\5\ on GTMO operations and (2)
the Treatment of Detainees Act of 2005 included in both the
FY06 Department of Defense Appropriations Act and National
Defense Authorization Act of 2006.
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\5\ See Rasul v. Bush, 124 S. Ct. 2686 (2004).
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Oversight hearing on ``The Scope and Myths of Roe v. Wade''
On Thursday, March 2, 2006, the Subcommittee on the
Constitution conducted an oversight hearing on ``The Scope and
Myths of Roe v. Wade.'' The witnesses included: Ms. Cinny Roy,
Founder and Director, Eve Center; Dr. Karen O'Connor,
Professor, American University; Ms. Helen M. Alvare, Associate
Professor of Law, Columbus School of Law, Catholic University
of America; Ms. Kellyanne Conway, President and Chief Executive
Officer, the polling companyTM, inc.
Ms. Cinny Roy testified, among other things, as to myths
surrounding elective abortion and the negative impact of
abortion on women, who she counsels for a variety of issues,
including pregnancy loss due to abortion.
Ms. Kellyanne Conway testified, among other things, that
``[t]he methodology and phraseology of public opinion polling
on abortion should be as carefully considered as the results.''
She further testified that ``[i]n cases where the American
public is given a fair chance to voice their opinions on the
complex considerations associated with this issue, it is
evident that most Americans do not support abortion on demand
and the broad provisions outlined in Roe v. Wade.''
Dr. Karen O'Connor testified, among other things, as to
abortion regulations prior to Roe v. Wade, the constitutional
underpinnings of Roe v. Wade, and Roe's implications for
American women.
Professor Helen Alvare testified, among other things, that
Roe v. Wade has been a pernicious influence with respect to
families generally, but especially for children. According to
Professor Alvare, Roe championed the notion that individual
wants are more important than the common good of the family and
elevated the constitutional status of sexual license without
preserving the traditional ties between sexual freedom and
marriage or family.
The following material was submitted for the hearing
record: Appendix to the Testimony of Professor Helen M. Alvare:
``Abortion in young women and subsequent mental health.''
Journal of Child Psychology and Psychiatry 47:1 (2006), pp 16-
24; Affidavits compiled by The Justice Foundation from women
who have had abortions, inserted by Congressman Franks during
the hearing; ``Confession of an Ex-Abortionist,'' Dr. Bernard
Nathanson, inserted into the Record by Congressman King;
Statement Submitted for the Record by Nancy Keenan, President,
NARAL Pro-Choice America; Statement Submitted for the Record by
Vicki Saporta, President & CEO, National Abortion Federation.
Oversight hearing on the ``Voting Rights Act: Evidence of Continued
Need''
On March 8, 2006, the Subcommittee on the Constitution held
the tenth of ten oversight hearings on the Voting Rights Act of
1965 (VRA). The hearing focused on the evidence complied by
outside organizations on the ongoing efforts to discriminate
against minority voters and the continued need for the VRA for
an additional 25 years. Testimony was taken from four witnesses
including: the Honorable Bill Lann Lee, Chairman, National
Commission on the Voting Rights Act; Ms. Nadine Strossen,
President, American Civil Liberties Union and Professor of Law,
New York Law School; Mr. Wade Henderson, Executive Director;
Leadership Conference on Civil Rights; and the Honorable Joe
Rogers, Commissioner, National Commission on the Voting Rights
Act.
Mr. Lee testified, among other things, on the evidence
compiled by the National Commission on the Voting Rights Act
(Commission) and the Commission's findings. Mr. Lee described
some of the Commission's findings such as the number of
objections interposed by the Department of Justice and the U.S.
District Court for the District of Columbia since 1982 to more
than 1,100 voting changes contained in more than 650 section 5
submissions. In addition, Mr. Lee testified that covered
jurisdictions withdrew an additional 200 submissions from
Section 5 review since 1982.
Ms. Strossen provided testimony on the ACLU's involvement
in voting rights litigation since 1982. Ms. Strossen testified
that the ACLU has brought or participated in 293 voting rights
cases in 31 States since 1982. Ms. Strossen testified that the
ACLU's involvement in these cases demonstrates: (1)
discrimination is still pervasive in covered jurisdictions and
(2) there is a continued need for the VRA for an additional 25
years.
Mr. Henderson provided testimony on the series of State
reports commissioned by the LCCR investigating the
effectiveness of the VRA over the last 25 years in Alabama,
Alaska, Arizona, California, Florida, Georgia, Louisiana,
Mississippi, New York, North Carolina, South Carolina, South
Dakota, Texas, and Virginia. Mr. Henderson testified that the
States were selected as a representative sampling, both
geographically and demographically, of the jurisdictions
covered in whole or in part by the VRA. Mr. Henderson testified
that the reports released to date reveal the impact that the
VRA has had on minority voters over the last 40 years and since
the VRA was last renewed in 1982. Moreover, Mr. Henderson
testified that discrimination continues to exist in these
jurisdictions, thus demonstrating the need to continue the
expiring provisions for an additional 25 years.
Mr. Rogers provided testimony, among other things, on the
work of the National Commission on the Voting Rights Act. Mr.
Rogers' testimony supported and corroborated testimony provided
by fellow Commissioner, Mr. Lee. Mr. Rogers provided specific
examples from Mississippi and California to demonstrate how the
VRA has been effective in protecting minority voters. In
addition, Mr. Rogers provided specific examples of how Section
203 benefits language minority voters and the role that Federal
observers have played over the last 25 years to protect
minority voters in polling locations.
Joint oversight hearing on ``Personal Information Acquired by the
Government from Information Resellers: Is There Need for
Improvement''
On April 4, 2006, the Subcommittee on the Constitution held
a joint oversight hearing with the Commercial and
Administrative Law Subcommittee on ``Personal Information
Acquired by the Government from Information Resellers: Is There
Need for Improvement.'' The hearing provided GAO the
opportunity to present the results of its year long
investigation into the privacy practices adhered to by the
Federal government when utilizing information obtained through
data brokers. The GAO report was issued in response to a
request made by Chairman Sensenbrenner, together with Ranking
Member Conyers, Mr. Chabot, and Mr. Nadler, in April 2005 that
GAO investigate the Federal Government's involvement and
reliance on data as it relates to fulfilling our Federal
Government's top priorities, such as our Nation's law
enforcement and antiterrorism efforts, and performing other
critical domestic functions such as effectively distributing
benefits. Testifying at the hearing was Ms. Linda D. Koontz,
Director, Information Management Issues, GAO; Ms. Maureen
Cooney, Acting Chief Privacy Officer, U.S. Department of
Homeland Security; Mr. Peter Swire, William O'Neill Professor
of Law, Moritz College of Law, the Ohio State University,
Visiting Senior Fellow, Center for American Progress; and Mr.
Stuart Pratt, President and CEO, Consumer Data Industry
Association.
Ms. Koontz testified, among other things, on GAO's findings
on agency and reseller privacy policies and practices, which
GAO had evaluated against the Fair Information Practices
(FIPs), a set of widely accepted principles for protecting the
privacy and security of personal information. Ms. Koontz
testified that the FIPs are the basis of privacy laws in many
countries and are the foundation of the Privacy Act and are not
legally binding either on Federal agencies or resellers. Ms.
Koontz testified that GAO found some inconsistencies among
agencies. While agencies did take steps to address the privacy
and security of the information acquired from resellers, their
handling of this information did not always fully reflect the
FIPs.
Ms. Cooney testified, among other things, on the steps
taken by the Department of Homeland Security (DHS) to protect
the privacy of personal information. Ms. Cooney testified that
the primary oversight mechanism used by the DHS Privacy Office
to ensure the protection of personal information is the privacy
impact assessment (PIA). Ms. Cooney testified on the important
role PIAs play in demonstrating the transparency of the
Department's activities. Ms. Cooney testified that PIAs compel
the consideration of privacy issues when implementing
regulations or new programs, including the use of information
obtained from commercial data brokers.
Professor Swire testified, among other things, that the
Federal government is still learning how to best incorporate
private databases into the activities of the Federal
government. In particular, Mr. Swire testified that while DHS
has set up a structure to protect the privacy of information
acquired through commercial data brokers, there are large gaps
in oversight throughout the executive branch, which use
information acquired through commercial data brokers. Professor
Swire recommended that a study be conducted by the National
Academy of Sciences to look into how privacy and information
sharing can coexist, especially as information becomes
increasingly necessary to fight terrorism.
Mr. Pratt testified, among other things, on the concerns
that the commercial data broker industry has with the GAO
report. In particular, Mr. Pratt testified that the report does
not adequately describe the value and effectiveness of the
information provided by commercial data brokers to Federal
agencies. Moreover, Mr. Pratt testified that the report does
not adequately describe the current legal structure in place to
regulate commercial data brokers to ensure that only accurate
and needed information is obtained and used by the Federal
government.
The information obtained during the April 4, 2006, hearing
led Mr. Chabot, together with Mr. Nadler, Mr. Cannon, and Mr.
Watt, to request that GAO conduct a follow-up investigation
reviewing the effectiveness of the DHS privacy office in
protecting privacy issues and whether it is fulfilling its
statutory mandate. This request was made of GAO on May 25,
2006, with the report expected to be completed sometime in
2007.
Oversight hearing on ``The Constitution and the Line Item Veto''
The Subcommittee on the Constitution conducted an oversight
hearing on ``The Constitution and the Line Item Veto'' on April
27, 2006. The Subcommittee heard testimony from Representative
Paul Ryan (WI-1), sponsor of H.R. 4890, the ``Legislative Line
Item Veto Act of 2006''; Representative Mark R. Kennedy (MN-6),
sponsor of H.J. Res. 71, a constitutional amendment providing
the president with a line item veto; Ms. Cristina Martin
Firvida, Senior Counsel at the National Women's Law Center; and
Mr. Charles J. Cooper, Partner, Coopers & Kirk.
The purpose of the hearing was to explore how a line item
veto, whether statutory or a constitutional amendment,
interacts with the constitutionally defined separation of
powers.
Representative Paul Ryan testified that the amount of pork
barrel spending by Congress has increased annually. He further
testified that one way to address the issue is to give the
President the power to rescind certain line items of spending
through a line item veto. However, since the original Line Item
Veto Act \6\ was held unconstitutional by the United States
Supreme Court in Clinton v. City of New York \7\,
Representative Ryan introduced a bill that would give the
president enhanced rescission authority, as opposed to a true
line item veto. Representative Ryan testified that his bill
would give the President the ability to put a temporary hold on
spending that he found wasteful and to send a rescission
request for that spending to Congress, which Congress would
then have to act on in an expedited fashion. He further
testified that he felt that H.R. 4890 was constitutional
because any such rescission request would have to be passed by
both Houses of Congress and signed by the president, pursuant
to the Presentment Clause. However, he further testified that
he would be willing to work with Members to address any
separation of powers or other constitutional concerns that they
may have with the bill.
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\6\ Pub. L. 104-130 (1996).
\7\ 524 U.S. 417, 439 (1998).
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Representative Kennedy testified that he was supportive of
Representative Ryan's efforts to address Congress' profligate
spending through a legislative line item veto. However, he
testified that his measure, H.J. Res. 71, was certain to be
constitutional because it would be a constitutional amendment.
Further, his amendment would allow the President to cancel any
item of direct spending, subject to Congress' ability to
override such a veto. He testified that this approach would be
an even stronger deterrent on Congress' wasteful spending.
Ms. Firvida testified that she had serious constitutional
concerns regarding H.R. 4890. While she acknowledged that H.R.
4890 may have addressed the issues raised by the Supreme Court
in Clinton, she stated that the bill would potentially shift
the balance of powers between the legislative and executive
branches in a way that the Supreme Court might find
problematic. Specifically, she raised the possibility that, as
introduced, nothing in H.R. 4890 prevented the President from
filing sequential sequestrations of items of spending in an
bill, thereby allowing a President to subvert Congress' intent
by not spending funds even if Congress had specifically
rejected the president's rescission request. She further
testified that line item vetoes are not effective tools against
wasteful spending because they apply only to a small portion of
the federal budget.
Mr. Cooper testified that as the lead counsel in the
constitutional challenge on Line Item Veto Act, it was his view
that H.R. 4890 was constitutional. Specifically, he thought
that the bill addressed the presentment clause challenges that
proved problematic with the earlier bill. He further testified
that the concerns raised by Ms. Firvida could be addressed
legislatively, and that any presidential abuse of the
legislative line item veto could be attacked in a court on as
case-by-case basis as opposed to holding the whole statute
unconstitutional.
The House of Representatives passed H.R. 4890 by a vote of
247 to 172 on June 22, 2006.
Oversight hearing on ``The Implementation of the Crime Victims'' Rights
Provisions of the Justice for All Act''
On June 21, 2006, the Subcommittee on the Constitution
conducted an oversight hearing on the Implementation of the
Crime Victims Rights Provisions of the Justice for All Act. The
following witnesses appeared at the hearing: Mrs. Debra
Culberson, Victim, Blanchester, Ohio; Ms. Mary Lou Leary,
Executive Director of the National Center for Victims of Crime;
Professor Julie Goldscheid, Associate Professor at City
University of New York Law School; and Ms. Margaret Garvin,
Director of Programs for the National Crime Victim Law
Institute.
The purpose of the hearing was to explore how the crime
victims's rights provisions of the Justice for All Act,\8\ and
specifically the provisions of the Crime Victims Rights Act
(CVRA), are being implemented by the Department of Justice and
the courts. The hearing explored the effectiveness of the
enforcement provisions, specifically the writ of mandamus, in
guaranteeing crime victims' rights. The hearing also explored
whether there have been any difficulties in enforcing any of
the enumerated rights in the bill. Finally, the hearing
addressed the implementation of the new regulations that the
Department of Justice put in place to ensure compliance with
the CVRA.
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\8\ Pub. L. 108-711 (2004).
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Mrs. Culberson testified that her daughter, Carrie, was
murdered by an ex-boyfriend, and that her body was never
recovered. Mrs. Culberson spoke of the difficulty of not being
able to bury her daughter and wondering whether her daughter's
remains are located on a shelf in a coroner's office. She
testified that she had be working with Representative Chabot to
create or enhance programs to identify unidentified human
remains, including a provision in the Justice for All Act.
Ms. Leary testified that the CVRA greatly enhanced the role
of victims in the federal criminal justice system. According to
Ms. Leary, one member of the National Center for Victims of
Crime told her that ``in her more than 30 years of experience
in law enforcement and victim services, `the Justice for All
Act is . . . the best piece of legislation to help crime
victims.' '' She testified that challenges still remain for
victims and that Congress should work to ensure that the crime
victims notification system works in a timely manner, and that
Congress should appropriate all funds that it has authorized in
the Justice for All Act and other victims rights legislation.
Professor Goldscheid testified that the Justice for All Act
was an important piece of victims rights legislation. However,
she urged Congress not to neglect other victims provisions,
such as the Victims of Crime Act and the Violence Against Women
Act. Like Ms. Leary, she urged Congress to fully appropriate
the funds authorized under the Justice for All Act, the Victims
of Crime Act, and the Violence Against Women Act.
Ms. Garvin testified that the Crime Victims Rights Act gave
victims, for the first time, an enforceable set of rights in
federal court. Ms. Garvin said, however, that some judges have
been reticent to enforce the provisions of the Act.
Specifically, she referred to a judge in the Northern District
of Alabama who had referred to the Act as the ``new, mushy
'feel good' statute.'' \9\ On the other hand, the United States
Court of Appeals for the Ninth Circuit had recently held that
victims have an affirmative right to speak in open court at
sentencing.\10\ She testified that the Ninth Circuit had also
recently adopted new rules to ensure that victims received
expedited appellate consideration of their claims as
contemplated under the Act.
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\9\ United States v. Holland, 380 F.Supp.2d 1264, 1278 (N.D. Ala.
2005).
\10\ Kenna v. United States District Court for the Central District
of California, 435 F.3d 1011 (9th Cir. 2006).
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Oversight hearing on ``The Americans with Disabilities Act: Sixteen
Years Later''
On September 13, 2006, the Subcommittee on the Constitution
held an oversight hearing that examined the progress made by
disabled Americans under the Americans with Disabilities Act of
2006 over the last sixteen years, the impact that certain
Supreme Court decisions has had on the interpretation of the
ADA's requirements, the enforcement record of the Department of
Justice and the Equal Employment Opportunity Commission (EEOC),
the unintended impact that the ADA has had on businesses, and
other evolving issues such as internet accessibility
requirements. Testifying at the hearing was the Honorable Tony
Coelho, former Member of the House of Representatives; the
Honorable Naomi C. Earp, Chair, Equal Employment Opportunity
Commission; Mr. Harry Horner, small business owner, Julian,
California; and Mr. Robert. L. Burgdorf, ADA legal advocate. In
addition to the testimony presented during the hearing, written
follow-up questions were submitted to each of the witnesses on
September 21, 2006.
Mr. Coelho testified, among other things, on the purpose of
the ADA, the progress made by disabled Americans under the ADA
over the last 16 years, as well as the limitations that have
been placed on the ADA's reach by the Supreme Court.
Ms. Earp testified, among other things, on the enforcement
efforts of the EEOC, the guidance provided to private
employers, and technical assistance issued to both affected
individuals and covered entities regarding the ADA's
protections and requirements.
Mr. Horner testified, among other things, on his
experiences as a small business owner subject to the ADA's
requirements. In particular, Mr. Horner described to the
Committee the uncertainty many businesses face with respect to
what is required under the ADA and the lack of guidance
provided.
Mr. Burgdorf testified, among other things, on the impact
that the ADA has had on disabled citizens, the impact that
certain Supreme Court decisions have had on the ADA, and
amendments needed to the ADA to restore it to its full
strength.