Floor Statements

Mr. Speaker, I thank the gentleman for yielding me this time.

Today is not a red letter day for this great and storied institution. Rather than doing what we know has to be done regarding immigration reform, we are simply punting the ball to the Senate, hoping that they will have the courage to act in ways that we cannot.

Many of us here wanted an amendment that would be made in order that would allow for a temporary worker program to be established. That was not allowed. In doing so, in not allowing that, we are simply ensuring that we play a diminished role in the eventual bill that will pass this body.

If the denial of this amendment was unfortunate, the removal of language in the manager's amendment that simply references the role that a temporary worker program would play in enhancing border security is simply baffling. Every member of the Republican leadership and virtually every Member of this institution has expressed the need to have a temporary worker program at some point in order to secure the border. Yet some said they would vote against the legislation if it was included here. Gratefully, the Senate will not need a ``sense of the Congress'' resolution to understand what they have to do, and that is to include a temporary worker program.

The elephant in the middle of the room, of course, is the 11 million illegals who are here. Without a temporary worker program, we will continue to turn a blind eye to their existence, to pretend that they are not here. Nobody in this body, not one, is advocating that we round up and deport those who are here illegally now, but unless we have a program for them to go into, we simply will not enforce the law. And that is the dirty little secret here. We ought to at least be honest with our constituents in this regard.

There are some who will vote against the rule and underlying legislation with the hope that we will later do something more comprehensive. Some will vote for the rule and underlying legislation with resignation that all we are capable of doing is to send this legislative vehicle, however flawed, to the Senate with the hope that they will act with the maturity that we lack.

One would be justified in either approach.

Mr. Speaker, today is not a red-letter day for this great and storied institution. Rather than do what we know must be done regarding immigration reform, we are punting the ball to the Senate--hoping that they will have the courage to act in ways that we cannot.

Many of us in this body asked for an amendment made in order that would make this legislation comprehensive, in other words, an amendment that would provide for enhanced border security, increased interior enforcement, and would provide a legal framework for foreign workers to enter the country and then return home.

It is unfortunate that this amendment was not made in order. In doing so we ensured that this body will play a diminished role, at best, moving ahead immigration reform.

If the denial of this amendment was unfortunate, the removal of language in the manager's amendment that references the role that a temporary worker program will play in enhancing border security, is simply baffling. Every member of the Republican leadership has expressed support for a temporary worker program, as has an overwhelming majority of this body, yet the language was removed after threats from a few that the inclusion of any reference to a temporary worker program would guarantee their ``no'' vote against this legislation.

Gratefully, the Senate doesn't need to see ``sense of the Congress'' language on a temporary worker plan from the House to add such a provision to their legislation. They know that such a plan is a necessary part of securing the border.

The elephant in the middle of the room is the 11 million illegal aliens who have already entered the country. Without a temporary worker program we will continue to turn a blind eye to their existence. We'll pretend they aren't here.

Nobody in this body is advocating that we round up and deport all of those who are here illegally. It's no wonder. It would be the equivalent to rounding up the entire population of the State of Ohio and sending them back to their home country. Yet that is what ``enforcing the current law'' would require.

We in this body know that, Mr. Speaker. But unfortunately we don't want to admit it to our constituents. George Washington once famously said ``If to please the people we do what we ourselves disprove, how will we then defend our work?'' That is the question for us today.

There are some who will vote against this rule and underlying legislation in the hope that we will later do something more comprehensive. Some will vote for this rule and underlying legislation with resignation that all we are capable of is to send a legislative vehicle,

however flawed, to the Senate with the hope that they will act with the maturity we lack.

One would be justified in either approach.

Mr. Speaker, I just want to echo some of the sentiments of some of the earlier speakers, particularly Mr. Kolbe from Arizona. We have to have comprehensive reform, and until we do, we are ignoring the elephant in the middle of the room, and that is the 11 million or so illegals who are here at present.

This is called an enforcement bill, but it does nothing to enforce the law and the interior. It says that if you are employing an illegal, you have up to 6 years to check their status; 6 years for that person to stay in the shadows, driving without a license, driving without insurance. That is not enforcement.

We have to have comprehensive reform that deals with border security, a temporary worker program and also dealing effectively with those who are here illegally at present. I hope if we do this bill that we move quickly on to more comprehensive legislation that will do all we need to do.

Madam Speaker, I thank the chairman for yielding me this time.

I want to commend him for a great process here. Often we do not have a deliberative process when we pass major pieces of legislation. That is not the case here. We had 12 hearings over a year on these provisions, and I want to point out what the chairman has already said, that we are not just dealing with those sections that are sunsetted but we are dealing with those that are not as well. We had some substantive reforms to the NSL process.

After the passage of the first PATRIOT Act, I and others formed the PATRIOT Act Reform Caucus because we felt we needed additional protections. That process yielded about a half dozen amendments which we offered during the House version of the bill, and each of those amendments was accepted and remains part of the legislation. One amendment that we dealt with during consideration of the House bill clarified that a recipient of an NSL, or national security letter, may discuss the NSL with his or her attorney and may disclose that request to an individual whose help is necessary for compliance with the NSL. That is an important safeguard.

And for those who say there is a gag rule that prohibits people from even mentioning the NSL, that is no longer true. If an NSL is challenged, it requires a recertification by either the FBI Director or another official confirmed by the Senate. This reform increases accountability in using NSLs, and it clarifies that judicial review exists and challenges to both the NSL and the prohibition on disclosure are now allowed. It also, as the chairman mentioned, establishes additional reporting requirements to the House and Senate Judiciary and Intelligence Committees on the frequency and use of NSLs. These are commonsense reforms and clarifications.

In addition to these safeguards on NSL authorities, the reauthorization also will add significant safeguards in a number of other areas, as the chairman mentioned. There are now strict time limits for those who are put on delayed notification as well as new reporting requirements to the House and Senate Judiciary Committees.

Madam Speaker, these are reforms that are important, and I am happy to support it, and I hope that we will codify these in the bill.

Mr. Speaker, I too want to commend those who worked to get the earmarks out of the bill. But I just wanted to point out that not all the earmarks are out of the bill. In the bill,

we have $1.25 million for the Center For Excellence in Native Hawaiian Law at the University of Hawaii, $1.2 million for the Hawaiian Department of Education for school construction, $2 million to the Mississippi Band of Choctaw Indians for cultural and education funding, $5 million for America's Promise.

Now these may well be good programs, but they should not be funded in this bill that says that all the earmarks are gone.

We also violated a House rule where we were naming two Federal facilities after sitting Members of Congress. The Center for Disease Control headquarters is being renamed the Arlen Specter Headquarters and Emergency Operations Center. We are renaming the communication center at the CFDC the Thomas R. Harkin Global Communications Center. We should not be doing this. If we are getting rid of the earmarks, we ought to get rid of all of them.

Offered By: Mr. Flake

Amendment No. 1: Add at the end the following:

Offered By: Mr. Flake

Amendment No. 1: At the end of title III, add the following

new subtitle:

Subtitle E--Medicare

Offered By: Mr. Flake

Amendment No. 2: At the end of title III, add the following

new subtitle:

Subtitle E--Medicare

Offered By: Mr. Flake

Amendment No. 3: At the end of title III, add the following

new subtitle:

Subtitle E--Medicare

Offered By: Mr. Flake

Amendment No. 4: At the end of title VII of the bill,

insert the following:

Mr. Chairman, I rise to engage in a colloquy with the chairman.

As the chairman knows, I have offered an amendment in the Rules Committee to address the problem of legal fees for property owners faced with the exercise of eminent domain by State and local governments. Homeowners in particular do not have the money to pay lawyers. Their main asset is tied up in a legal fight, so they cannot afford a challenge to the taking itself.

In addition, most eminent domain lawyers operate on contingency for a percentage of the eventual price of the property condemned, so it is hard to get anybody to challenge the taking, and you certainly cannot get it without paying.

The idea of the amendment is that owners are supposed to be no worse off after the condemnation than they were before. But if they have to pay their lawyer, whether by the hour or as a percentage of the sale price, they will always be worse off.

Would the chairman be willing to work with me on this issue in conference in a way to address the needs of private property owners without encouraging frivolous lawsuits?

I yield to the gentleman from Wisconsin.

I thank the chairman.

Mr. Chairman, I thank the gentleman for yielding me this time, and I appreciate the chairman's efforts to reach across the aisle and produce a true bipartisan bill, and I thank the gentleman from California (Mr. Cardoza) for working on this.

If any of my colleagues have served on the Committee on Resources, as I have, you know that this is a truly bipartisan bill. The gentleman from West Virginia mentioned that everybody can find an example of how the current ESA is out of whack, and he uses that as an excuse not to move forward with a bill that reforms it. I would say that that is precisely the reason we need to reform it, because everybody can find not just one but two or three or a dozen examples in their own State of how the current law is not leading to recovery, but it is, rather, tying people up and making individuals and organizations simply pay for a regulation rather than recovery.

The purpose of this bill is to lead to the recovery of species, and that is what this is all about. My own State of Arizona has had its own issues with the Endangered Species Act. Many times, those who manage water resources have been tied up with regulation that has required them to spend money on that rather than the recovery of species. This will make it far easier to do that.

This bill will also mean a deal between a landowner and a Federal agency is a deal. So for many reasons, I would support the bill.

Mr. Speaker, on that I demand the yeas and nays.

Parliamentary Inquiry

Madam Speaker, I ask unanimous consent that the name of the gentleman from Tennessee (Mr. Wamp) be removed as a cosponsor of my bill, H.R. 3684.

Mr. Chairman, I offer an amendment.

Mr. Chairman, this amendment will reduce the backlog and delay of the Federal courts' dockets by limiting harmless error sentencing claims. These are claims in which the Federal court is asked to review alleged errors in death penalty cases in State court that were either procedurally defaulted, in which the defendant failed to present the claim in State court; or, two, that already have been reviewed by the State courts and have been determined to be harmless and that only relate to the prisoner's sentencing, not the portion of the trial that determines guilt or innocence.

Under this amendment, fact-intensive and time-consuming ``harmless error sentencing claims'' will be reviewed again in Federal court only if the State court erred in determining that the claim was subject to harmless review.

An example of how this impacts victims of child abusers was raised at the House Committee on the Judiciary Subcommittee on Crime hearing by Ms. Carol Fornoff, whose 13-year-old daughter was raped and murdered in Tempe, Arizona, in 1984. The evidence of the guilt of the man convicted in killing her daughter was overwhelming. Yet, today, 21 years after Christy Ann Fornoff was murdered, the gentleman is still litigating his habeas appeals.

Mr. Chairman, this amendment will reduce the backlog and delay of the Federal courts' dockets by limiting harmless-error sentencing claims.

These are claims in which the Federal court is asked to review alleged errors in death penalty cases in State court that were either (1) procedurally defaulted--in which the defendant failed to present the claim in state court, or (2) that already have been reviewed by State courts and have been determined to be harmless, and (3) that only relate to the prisoner's sentencing--not to the portion of the trial that determines guilt or innocence.

Under this amendment, fact-intensive and time-consuming ``harmless- error sentencing claims'' will be reviewed again in Federal court only if the State court erred in determining that the claim was subject to harmlessness review.

An example of how this impacts victims of child abusers was raised at a House Judiciary Crime Subcommittee hearing by Mrs. Carol Fornoff, whose 13-year-old daughter was raped and murdered in Tempe, Arizona in 1984.

The evidence of the guilt of the man convicted of killing her daughter is overwhelming, yet today--21 years after Christy Ann Fornoff was murdered--the defendant still is litigating his habeas appeals in the Federal courts.

Mrs. Fornoff's testimony raised important questions. There needs to be some limit, some end to the process in these cases.

After 9 years under the Anti-Terrorism and Effective Death Penalty Act of 1996 or ``AEDPA'' (Ay-Depa), it is clear that the Act did not eliminate or even reduce the problem of delay in the Federal habeas process.

As evidenced by testimony in the Senate Judiciary Committee, in my home state of Arizona, 63 capital cases have been filed and remain pending since the effective date of the AEDPA (Ay-Depa).

Of those cases, only one has advanced to the Ninth Circuit, where it has remained pending for the past 5 years.

Thirteen pre-AEDPA (Ay-Depa) cases remain pending in Federal court; five of those cases have been in Federal court longer than 15 years; the others range in time from 9 years to 14 years. This is unacceptable.

The current system is grossly unfair to crime victims and their families. While defendants always should be allowed to litigate meaningful evidence of their innocence, we also should not allow endless appeals to become routine.

We need to protect innocent defendants, and we also need to allow victims and their families closure on these crimes.

Let me be clear that fundamental sentencing errors, and all guilt- phase errors, still would be subject to a second round of review in Federal court under this amendment.

Also, this amendment does not in any way limit the State courts' review of State criminal convictions, nor does it affect the U.S. Supreme Court's review of either a defendant's direct appeals or State- habeas petitions.

The amendment only limits the Federal habeas review that begins in the lower Federal courts after all State appeals and U.S. Supreme Court certiorari review are completed. Congress unquestionably has the authority to limit such review.

Deference to State courts is appropriate in this context, since these courts are closer to the trial and will have a better sense of what facts are likely to influence local juries.

This section merely precludes a repeat of this process at the Federal level for minor errors that are not related to guilt of the underlying offense, and that already have had an opportunity for review in State courts.

I urge my colleagues to adopt this amendment.

I yield to the gentleman from Wisconsin.

Mr. Chairman, that is too good an offer to turn down.

Mr. Chairman, will the gentleman yield?

Mr. Chairman, I would simply point out that this applies only to the sentencing portion of the hearing or the sentencing portion of the trial, not the guilt or innocent phase. We are not limiting habeas corpus at all on that phase.

Offered By: Mr. Flake

Amendment No. 13: Page 42, line 6, strike the close

quotation mark and the period that follows.

Page 42, after line 6, insert the following:

``(k) Sentencing Claims.--A court, justice, or judge shall

not have jurisdiction to consider an application with respect

to an error relating to the applicant's sentence or

sentencing that has been found to be harmless or not

prejudicial in State court proceedings, or that was found by

a State court to be procedurally barred, unless a

determination that the error is not structural is contrary to

clearly established Federal law, as determined by the Supreme

Court of the United States.''.