Constitution
Today's hearing focuses on federal diversity jurisdiction whereby federal courts may hear otherwise purely state law cases if the plaintiff and the defendant are citizens of different states.
For more than 2 centuries, Congress has imposed, and the Supreme Court has upheld, the requirement of "complete" diversity, which mandates that every plaintiff must be a citizen of a different state than every defendant for a federal court to have jurisdiction of the lawsuit.
H.R. 3438, the "Require Evaluation before Implementing Executive Wishlists Act of 2016," would stay the enforcement of any rule imposing an annual cost to the economy in excess of $1 billion pending judicial review.
Notwithstanding the bill's colorful short title, H.R. 3438 would have a pernicious impact on rulemaking and the ability of agencies to respond to critical health and safety issues.
In essence, the bill would encourage anyone who wants to delay a significant rule from going into effect by simply seeking judicial review of the rule.
I rise in strong opposition to H.R. 4768, the "Separation of Powers Restoration Act of 2016."
By eliminating judicial deference to agency determinations, the bill would make the already ossified rulemaking process even more time-consuming and costly, threatening the ability of federal regulatory agencies to protect public health and safety.
This is true for several reasons. Ironically, for a bill that purports to "restore" separation of powers, H.R. 4768 actually raises separation of power concerns.
Congress makes the laws and agencies implement them, while the courts are supposed to interpret the law.
The House Judiciary Committee has announced a markup for Thursday, July 7, 2016. Below is the Committee's schedule for the week of July 5-8, 2016.
WEDNESDAY, JULY 6
10:00 a.m. Subcommittee on Courts, Intellectual Property and the Internet
Hearing on: "The Judicial Branch and the Efficient Administration of Justice"
Witness:
- Mr. James Duff, Director, Administrative Office of the U.S. Courts
2237 Rayburn House Office Building
1:00 p.m. Task Force on Executive Overreach
House Judiciary Committee Ranking Member John Conyers, Jr. (D-MI) and Subcommittee on the Constitution and Civil Justice Ranking Member Steve Cohen (D-Tenn.) today released the following joint statement in response to the U.S. Supreme Court's Whole Woman's Health v. Hellerstedt decision, which ruled that Texas' abortion law was unconstitutional:
U.S. Representatives John Conyers, Jr. (D-Mich.), Ranking Member on the House Judiciary Committee, and Zoe Lofgren (D-Calif.), Ranking Member on the Immigration and Border Security Subcommittee, issued the following joint statement today after the U.S. Supreme Court of the United States failed to reach a majority decision on the United States v. Texas case:
"Today the Supreme Court issued a split decision that sets no precedent but leaves in place a lower court preliminary injunction blocking the President's immigration executive actions.
Today, the U.S. Supreme Court issued its decision in Fisher v. University of Texas at Austin, upholding affirmative action programs at the University of Texas at Austin. House Judiciary Committee Ranking Member John Conyers, Jr. (D-Mich.), Subcommittee on Crime, Terrorism, and Homeland Security Ranking Member Sheila Jackson Lee (D-TX), and Subcommittee on the Constitution and Civil Justice Ranking Member Steve Cohen (D-Tenn.) released the following joint statement:
Witnesses
Bruce D. Brown
Executive Director, Reporters Committee for Freedom of the Press
Laura Prather
Partner, Haynes and Boone, LLP
WEDNESDAY, JUNE 22
10:00 a.m. Full Committee
Hearing on: "Examining the Allegations of Misconduct Against IRS Commissioner John Koskinen, Part II"
Witnesses:
- Jonathan Turley, Professor of Law, George Washington University
- Andrew McCarthy, Former Assistant U.S. Attorney for the Southern District of New York
- Michael Gerhardt, Professor in Constitutional Law & Director, Program in Law and Government, UNC School of Law
- Todd Garvey, Legislative Attorney, American Law Division, Library of Congress
2141 Rayburn House Office Building
H.R. 4768, the "Separation of Powers Restoration Act of 2016," would eliminate judicial deference to agencies and require federal courts to review all agency rulemakings and interpretations of statutes on a de novo basis.
As a result, the bill would empower a judge to override the determinations of agency experts and to substitute his or her judgment, regardless of the judge's technical knowledge and understanding of the underlying subject matter.
This legislation is harmful for several reasons. To begin with, H.R. 4768 would make the federal rulemaking process even more time-consuming and costly.
Text of Legislation
Amendments
Today, House Judiciary Committee Ranking Member John Conyers, Jr. (D-MI) and Congressman David Cicilline (D-RI) condemned the actions of House Judiciary Republicans who refused to vote on an amendment to H.R. 4768, the Separation of Powers Restoration Act of 2016. The amendment offered by Congressman David Cicilline, would have made clear that a judge cannot be disqualified on the basis of race, ethnicity, or national origin.
TUESDAY, JUNE 7
4:00 p.m. Subcommittee on Regulatory Reform, Commercial and Antitrust Law
Hearing on: "International Antitrust Enforcement: China and Beyond"
Witnesses:
House Judiciary Committee Chairman Bob Goodlatte (R-Va.), House Judiciary Committee Ranking Member John Conyers (D-Mich.), Crime, Terrorism, Homeland Security, and Investigations Subcommittee Chairman Jim Sensenbrenner (R-Wis.), and Courts, Intellectual Property and the Internet Ranking Member Jerrold Nadler (D-N.Y.) issued the following joint statement on the one year anniversary of the enactment of the USA Freedom Act:
The House Judiciary Committee today approved by voice vote H.R. 5283, the Deterring Undue Enforcement by Protecting Rights of Citizens from Excessive Searches and Seizures Act of 2016 (Due Process Act) to strengthen protections for Americans' property through civil asset forfeiture reform.
Today's hearing is the 32nd anti-regulatory hearing that we have had since the beginning of the 112th Congress. The anti-regulatory fervor of some in Congress is no doubt passionate and heartfelt.
But, as I have noted repeatedly during the 31 previous hearings we have had on this topic, regulation is vital to protecting everyday Americans from a myriad of harms. And, broad agency authority is crucial to ensuring a well-run regulatory system that promotes public health and safety, while providing certainty for business.
So as we consider our witnesses' testimony, we should keep the following in mind.
In the history of the Republic, the House of Representatives has voted to impeach a federal official only 19 times. I served on this Committee to consider six of those 19 resolutions. I voted in favor of five of them. And I helped to draft articles of impeachment against President Richard Nixon-and joined with 20 Democrats and six Republicans-to send three of those articles to the House floor. The lessons I draw from these experiences are hard earned.
The 3 bills that are the subject of today's hearing would institute a "notice and cure" requirement under Title III of the Americans with Disabilities Act of 1990. Specifically, these measures would prohibit a lawsuit from being commenced unless the plaintiff first gave the business owner "specific" notice of an alleged violation and an opportunity to fix or make "substantial" progress toward remedying such violation.
Let me begin by stating again what I stated previously when similar proposals were considered by our Committee.
Committee on the Judiciary Ranking Member John Conyers, Jr. (MI-13) and Committee on Education and the Workforce Ranking Member Bobby Scott (VA-03) unveiled the findings of a new report by the Government Accountability Office (GAO) on actions needed to reduce racial and socioeconomic segregation, and address disparities in K-12 public schools. Ranking Members Conyers and Scott, along with retired Congressman and former Ranking Member George Miller, first requested this report in May 2014.
Witnesses
Mr. Jack M. Beermann
Professor of Law, Boston University School of Law
Mr. Jeffrey B Clark
Partner, Kirkland & Ellis LLP
The House Judiciary Committee has announced its schedule for the week of May 16-20, 2016.\
TUESDAY, MAY 17
10:00 a.m. Subcommittee on Crime, Terrorism, Homeland Security, and Investigations
Hearing on: "Synthetic Drugs, Real Danger"
2141 Rayburn House Office Building
1:00 p.m. Subcommittee on Regulatory Reform, Commercial and Antitrust Law
Hearing on: H.R. 4768, the "Separation of Powers Restoration Act of 2016"
THURSDAY, MAY 19
9:00 a.m. Subcommittee on the Constitution and Civil Justice
The issue of the appropriate roles of Congress and the President with respect to the subject of foreign affairs is certainly worthy of a genuinely substantive discussion.
For instance, we could consider whether our Nation's current military operations against the Islamic State of Iraq and Syria have been properly authorized by Congress.
Unfortunately, however, today's hearing – like the prior Task Force hearings – is yet another thinly veiled attack against the current Administration.
H.R. 5063, the "Stop Settlement Slush Funds Act of 2016," would prohibit the enforcement or negotiation of any settlement agreement requiring donations to remediate harms that are not "directly and proximately" caused by a party's unlawful conduct.
The proponents of this bill claim that the Justice Department and civil enforcement agencies use such settlement agreements to unlawfully augment their own budgets as an end-run around the congressional appropriations process.
I oppose H.R. 5063 for several reasons.
To begin with these types of settlement agreements have been successfully used to remedy various harms caused by reckless corporate actors.
Today, Gov. Terry McAuliffe announced that he used his executive authority to restore the voting rights of more than 200,000 ex-offenders. As a result, ex-offenders in Virginia who are not in prison, on probation or parole will be permitted to register and vote in the upcoming presidential election. House Judiciary Committee Ranking Member John Conyers, Jr. (D-MI), commended his actions with the following statement:
H.R. 4924, the "Prenatal Nondiscrimination Act of 2016," is the latest attempt to erode the constitutional right to an abortion guaranteed by Roe v. Wade more than 40 years ago.
Among other things, the bill would make it a crime for a doctor to perform an abortion if she or he knows that the procedure is being done because of the race or sex of the fetus or the race of one of the parents, regardless of viability.
As I noted in the 112th Congress, when we last considered this bill, the bill is deeply flawed for a number of reasons.
To begin with, the bill is patently unconstitutional because it bans certain pre-viability abortions.