Floor Statements

Mr. Speaker, I've been here a while and it's hard for me to recall a time when we've voted on something so obviously and willfully harmful to children, seniors and working Americans.

This bill strips healthcare from 24 million people.

It requires some seniors to pay 100 percent or more of their income in premiums.

This legislation dramatically cuts Medicaid, directly contradicting President Trump's claim not to.

In Michigan, HALF of all children rely on Medicaid.

In my district alone, 56,000 people will lose coverage, including 16,000 children.

Let's be clear: if we pass this bill, children, seniors, and working people will suffer and some will die, so that the wealthy can get a tax cut.

Healthcare is a right, not a privilege. That's why I support a single-payer, Medicare-for-All plan, and why I will be voting ``no'' on this mean spirited legislation.

Mr. Speaker, as Ranking Member on the House Judiciary Committee, I include in the Record a legal analysis prepared by committee staff that concludes that the provision of H.R. 1628 that requires New York State to change how its counties fund the State's portion of Medicaid expenses is not related to a legitimate Federal interest, that no rational Federal purpose has been proffered for the provision, and that it would severely intrude on traditional state prerogatives. As such, this provision would violate Constitutional limits on the Federal Spending Power, the Due Process and Equal Protection Clauses and the Tenth Amendment (reserving all undelegated powers to the States) and would likely be held unconstitutional if challenged in court.

Memorandum

To: Interested Members.

From: House Judiciary Committee Democratic Staff.

Re: Constitutionality of Faso-Collins Amendment.

Date: March 24, 2017.

The Faso-Collins amendment, incorporated into the Manager's

amendment, would violate Constitutional limits on the Federal

Spending Power, the Due Process and Equal Protection Clauses

and the Tenth Amendment (reserving all undelegated powers to

the States). Requiring New York State to change how its

counties Fund its portion of Medicaid expenses is not related

to a legitimate Federal interest, no rational Federal purpose

has been proffered for the provision, and it would severely

intrude on traditional state prerogatives.

If the Faso-Collins amendment were ever enacted, it quickly

would be invalidated by the Federal courts. The irony of this

``buyout'' is that the ``payment'' supposedly being delivered

in exchange for votes--the unconstitutional provision--is the

legislative equivalent of a check on a closed bank account,

which will never deliver the promised benefits.

For the last 51 years, New York State has chosen to fund a

portion of its share of the Medicaid Program by using funds

from county property taxes. Fifteen other States structure

Medicaid funding through a similar legally authorized system.

The Faso-Collins amendment specifies that any State that

had an allotment of Disproportionate Share Hospital (DSH)

funds that was more than 6 times the national average, and

that requires subdivisions with populations of less than

5,000,000 to contribute toward Medicaid costs, shall have its

reimbursement reduced by the amount of contributions by such

subdivisions. (This effectively limits the application to New

York State, and carves out New York City.) Under the

amendment, New York State is at risk of losing $2.3 billion

of its $32 billion in Federal Medicaid funds.

This provision is unconstitutional, and could be struck

down for several reasons:

Violation of Limits on Spending Power--Article I of the

Constitution grants Congress spending power to ``provide for

the . . . general Welfare.'' In South Dakota v. Dole, 483

U.S. 203 (1987), the Supreme Court held that any spending

condition imposed on the States must be related to the

Federal interest in that particular project or program and

that Congress cannot coerce the States into compliance with

the Federal government's objectives. In NFIB v. Sebelius, 132

S. Ct. 2566 (2012), the Supreme Court found provisions of the

Affordable Care Act which required all States to comply with

the law's Medicaid expansion violated this spending

authority, noting the ``Constitution has never been

understood to confer upon Congress the ability to require the

States to govern according to Congress' instructions.'' The

Faso-Collins language does not appear to be related to any

Federal interest in the use or allocation of Federal Medicaid

funds: it does not further Medicaid's purposes and has

nothing to do with ensuring the proper disbursement of

Federal funds. Indeed, because the provision applies to

counties in a single State--and leaves the very same system

undisturbed in 15 other States--it could not possibly be

justified by any legitimate Federal interest.

An additional line of Supreme Court cases, including New

York v. United States, 505 U.S. 144, 167, 172 (1992), has

held that conditions on Federal grants must be ``reasonably

related to the purpose of the [Federal] expenditure'' because

otherwise ``the spending power could render academic the

Constitution's other grants and limits of Federal

authority.'' Likewise, in Massachusetts v. United States, 435

U.S. 444, 461 (1978), the Supreme Court noted that it has

``repeatedly held that the Federal Government may impose

appropriate conditions on the use of Federal property or

privileges and may require that State instrumentalities

comply with conditions that are reasonably related to the

Federal interest in particular national projects or

programs.'' Under these precedents, the Faso-Collins language

would be held to be an arbitrary exercise of Federal power

which intrudes on only one particular State's sovereign tax

powers, and is unrelated to any Federal interest or purpose

in the Medicaid Program.

As Yale Law School Professor Abbe Gluck wrote in a post on

the Balkinzation blog today, the Faso-Collins ``amendment is

likely unconstitutional. The protection from federal

interference of the internal functions of a state government

is one of the bedrocks of state sovereignty protected by the

limitations on Congress's powers in Article I of the

Constitution and the reservation of power to the states in

the Tenth Amendment.'' She further reasoned that ``Even if

one could argue that this is an exercise of the federal

spending power under Article I, for Congress to legally use

that power, the conditions on a state's use of federal

funding have to be tied to a reasonable federal propose . . .

It is hard to see a reasonable federal purpose here other

than garnering more GOP votes for the struggling repeal

bill.'' (available at https://ballkin.blogspot.com/2017/03/ is-gop-aca-repealer-unconstitutional-on.html?m=1)

Violation of Due Process and Equal Protection--Under the

Fifth Amendment, the Federal government is not permitted to

deprive its citizens of equal protection or due process of

law. Those clauses have been interpreted on numerous

occasions to prevent the government from discriminating

between the treatment of the sovereign States absent a

rational basis. For example, in Helvering v. David, 301 U.S.

619, 640 (1937), the Supreme Court warned that Congress does

not possess the right to demonstrate a ``display of arbitrary

power'' in its treatment of the various States. In this

regard, in 2009, when an earlier Senate version of the

Affordable Care Act sought to provide special treatment for

Nebraska with respect to Medicaid reimbursements, 13

Republican State attorneys general wrote to Congress

(available at http://www.law.columbia.edu/sites/default/ files/microsites/career-servicesifiles/Letter%20to%

20the%20 Honorable%20Nancy %20Pelosi%20 and%20the

%20Honorable%20Harry %20Reid.pdf) asserting the provision was

unconstitutional (the provision was ultimately dropped). In

the case of the Faso-Collins language, there is no legitimate

policy justification for developing a special rule limiting

Medicaid funds for New York as compared to all other States,

including 15 States which have sharing agreements with their

counties. Nor has a justification been offered for why New

York City should be excluded from the application of the

special rule. As such, it is clear that the provision is

discriminatory, ``arbitrary'' and has no rational basis.

Abrogation of Tenth Amendment Principles--The Tenth

Amendment provides in relevant part that powers not delegated

to the Federal government or prohibited to the States are

reserved for the States. This has been read to prevent the

federal government from ``commandeering'' the states to serve

its own purposes. In Printz v. United States, 521 U.S. 898

(1997), the Supreme Court held that Congress cannot

commandeer State officers to implement Federal policy--in

that case requiring criminal background checks for handgun

purchases pursuant to the Brady Handgun Violence Prevention

Act. The Faso-Collins language commandeers New York State

government to facilitate the partisan political ends of a

faction in the U.S. Congress, which would seem well outside

the proscriptions of Printz. In fact, by essentially ordering

New York to reorganize its internal affairs, the Faso-Collins

amendment may run even further afoul of Tenth Amendment

principles than was the case in Printz given the lack of a

Federal purpose and the interference with the core sovereign

function of how a State chooses to use its taxing power.

It is of particular constitutional concern that the Faso-

Collins provision directly interferes with New York's

internal decisions about how to structure its own tax and

spending policies, and how to allocate those responsibilities

between the State and its subdivisions--which is a core

function of a sovereign entity protected by the Tenth

Amendment (and potentially Article IV Sec. 4 of the

Constitution, which provides that the ``United States shall

guarantee to every State in this Union a Republican Form of

Government.''). This is constitutionally significant because

in Reynolds v. Sims, 377 U.S. 533, 575 (1964), the Supreme

Court held that political subdivisions such as counties and

cities ``have been traditionally regarded as subordinate

governmental instrumentalities created by the State to assist

in the carrying

out of State governmental functions.'' In Hunter v. City of

Pittsburgh, 207 U.S. 161, 178 (1907), the Court noted that

these subdivisions are ``created as convenient agencies for

exercising such of the governmental powers of the state, as

may be entrusted to them'' and that the ``number, nature, and

duration of powers conferred upon these [entities] and the

territory over which they shall be exercised rests in the

absolute discretion of the state.'' The Faso-Collins

amendment purports to invoke Federal power to displace New

York's sovereign exercise of this ``absolute discretion''

and, for that reason, violates the Constitution. As Chief

Justice John Marshall long ago explained in Gibbons v. Ogden,

22 U.S. 1, 198-200 (1824), the States' ``power of taxation is

indispensable to their existence. . . . In imposing taxes for

State purposes, [States] are not doing what Congress is

empowered to do. Congress is not empowered to tax for those

purposes which are within the exclusive province of the

States.''

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I rise in qualified support of H.R. 372, the Competitive Health Insurance Reform Act, but I do not endorse the majority's exaggerated claims regarding the bill's impact on the affordability and availability of health insurance.

H.R. 372 would partially repeal the limited Federal antitrust exemption for the business of insurance established by the McCarran- Ferguson Act in 1945. Specifically, the bill only permits Federal antitrust enforcement with regard to the business of health insurance.

Now, House Democrats have long supported a full repeal of McCarran- Ferguson's antitrust exemption for all insurers, not just for health insurers. In 2010, under a Democratic House majority, we passed legislation to repeal the McCarran-Ferguson exemption for health insurers by a vote of 406-19, even though House Republicans had not previously supported moving any version of a McCarran-Ferguson repeal bill.

But let me be clear. Enacting H.R. 372 would in no way be a substitute for the many health insurance guarantees of the Affordable Care Act. The two things are completely separate. To begin with, enacting H.R. 372 would not significantly improve healthcare affordability or coverage. According to the Congressional Budget Office, H.R. 372's effect on health insurance premiums would probably be quite small, and enacting the bill would have no significant net effect on the premiums the private insurers would charge for health or dental insurance. That is according to the Congressional Budget Office.

The Consumers Union observes that the application of the antitrust laws to some health insurance activity, by itself, is simply not enough to create a vibrant insurance market because our long experience shows you can't expect a healthcare system to run effectively on competition alone. That is the Consumers Union.

Likewise, the majority's claim that enacting H.R. 372 would create major new competition by allowing cross-State insurance sales is unavailing. Current law, including the Affordable Care Act, already allows States to agree with each other to allow cross-State insurance sales.

Enabling Federal antitrust agencies to police certain forms of anticompetitive conduct will not, in and of itself, incentivize health insurers to offer products across State lines beyond the incentives that already exist for offering such products. It just won't happen by itself. Whatever the incentives for health insurers to offer such products, they have little to do with Federal antitrust law or enforcement.

Finally, enacting H.R. 372 would not ensure that the Affordable Care Act's prohibitions against discrimination and limits on premium growth would remain in place. H.R. 372 only applies to certain anticompetitive conduct and does not preserve or enhance existing protections for consumers of health insurance. For instance, it does not prohibit discrimination by health insurers on the basis of preexisting conditions, nor does it reduce premium growth or require health insurers to be accountable for price increases.

Repeal of the antitrust exemption for health insurance is a complement to and not a replacement for the Affordable Care Act's many consumer protections. This is not an either-or situation. We need H.R. 372 and the Affordable Care Act to be in place to maximize benefits, improve quality, and lower costs for consumers.

So while I support the bill with some reluctance, I take issue with the majority's rhetoric. It is very important that we set the record straight here.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield such time as he may consume to the gentleman from Rhode Island (Mr. Cicilline), who is a distinguished leader of the Judiciary Committee.

Mr. Speaker, how much time is remaining?

Mr. Speaker, I yield such time as she may consume to the gentlewoman from Texas (Ms. Jackson Lee).

Mr. Speaker, I yield myself such time as I may consume.

In closing, I want to reiterate my support for this measure, H.R. 372. Now, I don't know what is happening on the other side, but many of its leaders voted against a substantively identical version of this bill in 2010, and that was including Speaker Ryan, Health and Human Services Secretary Tom Price, Committee on Ways and Means chairman Kevin Brady. They voted against a substantively identical version of this bill. I don't want to impugn motives that I don't know about, but maybe if you support H.R. 372, you are going to be making the Affordable Care Act, ACA, better. So I want to thank my friends on the other side for helping us out. This is great. We passed something like this a few years ago, and we were very proud that it was an overwhelming vote.

This is a very important step forward. The Affordable Care Act is not going to be affected in any kind of negative way, and that is why I am eager to join with those who are going to be voting for H.R. 372. I thank my friends on the other side for supporting H.R. 372 as well.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I am pleased to introduce the End Racial Profiling Act of 2017, along with additional cosponsors. This legislation represents a comprehensive federal commitment to healing the rift caused by racial, ethnic and religious profiling and restoring public confidence in the criminal justice system at-large. This legislation is designed to enforce the constitutional right to equal protection of the laws by changing the policies and procedures underlying the practice of discriminatory profiling.

Recent events in the wake of President Trump's Executive Orders on Immigration demonstrate that racial, ethnic and religious profiling remain dangerous and divisive issues in our communities. Airport detentions of Muslims and immigration raids targeted at the Latino community strike at the very foundation of our democracy. Though people across our nation are protesting in response to these actions, there is no substitute for comprehensive federal anti-profiling legislation.

This legislation can be traced back to the data collection efforts of the late 1990's that were designed to determine whether racial profiling was a fact versus an urban legend. Based upon the work around that legislation, by September 11, 2001, there was significant empirical evidence and wide agreement among Americans, including President Bush and Attorney General Ashcroft, that racial profiling was a tragic fact of life in the minority community and that the Federal government should take action to end the practice. Moreover, many in the law enforcement community have acknowledged that singling out people for heightened scrutiny based on their race, ethnicity, religion, or national origin had eroded the trust in law enforcement necessary to appropriately serve and protect our communities.

Despite the fact that the majority of law enforcement officers perform their duties professionally and without bias, and we value their service highly, the specter of discriminatory profiling has contaminated the relationship between the police and minority communities to such a degree that Federal action is justified to begin addressing the issue.

The End Racial Profiling Act is designed to eliminate the well documented problem of racial, ethnic, religious, gender, sexual orientation, gender identity and national origin profiling. First, the bill provides a prohibition on racial profiling, enforceable by declaratory or injunctive relief. Second, the bill mandates that training on racial profiling issues as part of Federal law enforcement training, the collection of data on all routine or spontaneous investigatory activities that is to be submitted through a standardized form to the Department of Justice. Third, the Justice Department is authorized to provide grants for the development and implementation of best policing practices, such as early warning systems, technology integration, and other management protocols that discourage profiling. Finally, the Attorney General is required to provide periodic reports to assess the nature of any ongoing discriminatory profiling practices.

In recent years the deaths of Walter L. Scott, arising from a traffic stop, Michael Brown, Eric Garner, and Antonio Zambrano-Montes, all at the hands of police officers, have highlighted the link between the issues of race and reasonable suspicion of criminal conduct. These individuals were denied the basic respect and equal treatment that is the right of every American. Ultimately, these men are tragic examples of the risk of being victimized by a perception of criminality simply because of their race, ethnicity, religion or national origin. These dangerous misperceptions of criminality helped to cultivate an environment in which the United States government considers discriminatory and unconstitutional executive orders a reasonable use of executive power.

Decades ago, the passage of sweeping civil rights legislation made clear that race, religion and ethnicity should not affect the treatment of individual Americans under the law. The practice of using race or other characteristics as a proxy for criminality in law enforcement undermines the progress we have made toward achieving equality under the law. Please join me in supporting this legislation.

Mr. Chairman, I yield myself such time as I may consume.

I rise in strong opposition to H.R. 720, the so-called Lawsuit Abuse Reduction Act.

This bill amends rule 11 of the Federal Rules of Civil Procedure in ways that will chill the advancement of civil rights claims and increase exponentially the volume and costs of litigation in the Federal courts.

These concerns are not hypothetical. H.R. 720 restores the deeply flawed version of rule 11 in effect from 1983 to 1993 in two ways: by requiring mandatory sanctions for even unintentional violations rather than leaving the imposition of sanctions to the court's discretion, as is currently the case; and secondly, by eliminating the current rule's 21-day safe harbor provision, which allows the defending party to correct or withdraw allegedly offending submissions.

Simply put, H.R. 720 will have a disastrous impact on the administration of justice in numerous ways. To begin with, the bill will chill legitimate civil rights litigation, which, to me, of course, is very important.

Civil rights cases often raise novel legal arguments, which made such cases particularly susceptible to sanction motions under the 1983 rule. For example, a Federal Judicial Center study found that the incidence of rule 11 motions under the 1983 rule was ``higher in civil rights cases than in some other types of cases.''

Another study showed that, while civil rights cases comprised about 11 percent of the cases filed, more than 22 percent of the cases in which sanctions had been imposed were, in fact, civil rights cases.

Under the 1983 rule, civil rights cases were clearly disadvantaged. Yet, H.R. 720 would reserve this problematic regime.

Although the bill's rule of construction is a welcome acknowledgment of the problem, it does nothing to prevent defendants from using rule 11 as a weapon to discourage civil rights plaintiffs. Even a landmark case like Brown v. Board of Education might not have been pursued had H.R. 720's changes to rule 11 been in effect at that time, because the legal arguments in the case were novel and not based on then-existing law.

In addition, H.R. 720 will substantially increase the amount, cost, and intensity of civil litigation and create more grounds for unnecessary delay and harassment in the courtroom itself.

By making sanctions mandatory and having no safe harbor, the 1983 rule spawned a cottage industry of rule 11 litigation. Each party had a financial incentive to tie up the other in rule 11 proceedings.

We heard testimony on a previous version of this bill that almost one-third of all Federal lawsuits during the decade that the 1983 rule was in effect were burdened by such satellite litigation, where the parties tried the underlying case and then put each side's counsel on trial.

Finally, H.R. 720 strips the judiciary of its discretion and independence. H.R. 720 overrides judicial independence by removing the discretion that rule 11 currently gives judges in determining whether to impose sanctions and what type of sanctions would be most appropriate. It also circumvents the painstakingly thorough Rules Enabling Act process that Congress established more than 80 years ago.

For all of these reasons, I urge my colleagues to join us in opposing this highly problematic legislation.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I am pleased to yield 3 minutes to the gentleman from New York (Mr. Nadler),

the senior member of the House Committee on the Judiciary.

Mr. Chairman, I am pleased to yield 4 minutes to the distinguished gentlewoman from Texas (Ms. Jackson Lee).

Mr. Chairman, I yield an additional 1 minute to the gentlewoman.

Mr. Chairman, it is my pleasure to yield 4 minutes to the gentleman from Georgia (Mr. Johnson).

Mr. Chairman, I yield myself such time as I may consume. These constitute my closing observations on this measure.

Mr. Chairman, H.R. 720 would turn back the clock to a time when rule 11 discouraged civil rights cases, restricted judicial discretion, and engendered vast amounts of time-consuming and costly so-called satellite litigation.

Not surprisingly, the Judicial Conference of the United States, the principal policymaking body for the judicial branch charged with proposing amendments to the Federal Rules of Civil Procedure under the careful, deliberate process specified in the Rules Enabling Act, opposes this measure, noting that it creates a cure worse than the problem it is meant to solve.

Likewise, the American Bar Association opposes this legislation, as do numerous consumer and environmental groups, including: Public Citizen, the Alliance for Justice, the Center for Justice and Democracy, the Consumer Federation of America, Consumers Union, Earthjustice, the National Association of Consumer Advocates, and six other major organizations.

Finally, last Congress, the Obama administration, strongly opposed a substantively identical measure, noting that the bill was ``both unnecessary and counterproductive,'' and that it ``actually increases litigation.''

Accordingly, I urge my colleagues in this body to reject this flawed bill.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I ask that my amendment be brought forward at this time.

Mr. Chairman, I am very concerned that H.R. 720 may have a serious, deleterious impact on the ability of individuals to protect their civil and constitutional rights in Federal court. This is a point that has been emphasized on this side ever since we have started examining, more carefully, H.R. 720. Accordingly, my amendment would simply exempt these types of cases from the bill.

Based on a decade of experience with the 1983 version of the Federal Rules of Civil Procedure, we know that the civil rights cases were, in fact, disproportionately impacted because they often raised novel arguments.

For example, a 1991 Federal Judicial Center study found that the incidence of rule 11 motions was ``higher in civil rights cases than in some other types of cases.'' Another study shows that, while civil rights cases comprised only 11 percent of the Federal cases filed, more than 22 percent of the cases in which sanctions had been imposed were, in fact, civil rights cases.

The bill contains a rule of construction intended to clarify that ``it not be construed to bar the assertion of new claims or defenses or remedies, including those arising under civil rights laws or the Constitution.''

The inclusion of this language is an acknowledgment of the disproportionate impact that the 1983 rule had on civil rights cases, and we should applaud--and I am sure we do--its intent.

Nevertheless, I fear this rule of construction, by itself, will not prevent defendants from using rule 11 as a weapon to dissuade civil rights plaintiffs from pursuing their claims.

My amendment makes an explicit exception for civil rights and constitutional actions. As a result, litigants will be clearly aware of its existence and will not be able to force opposing parties into satellite litigation when the case is brought under a civil rights law.

This amendment is necessary to avoid even the possibility of a chilling effect that the revisions made by the bill to rule 11 could have on those advocating for civil rights and constitutional law protections. As the late Robert Carter, a former United States judge for the Southern District of New York, who earlier in his career represented one of the plaintiffs in the Brown v. Board of Education case, said of the 1983 version of rule 11:

``I have no doubt that the Supreme Court's opportunity to pronounce separate schools inherently unequal in Brown v. Board of Education would have been delayed for a decade had my colleagues and I been required, upon pain of potential sanctions, to plead our legal theory explicitly from the start.''

For that reason alone, I urge the adoption of this amendment.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield the balance of my time to the gentlewoman from Texas (Ms. Jackson Lee).

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I demand a recorded vote.

Mr. Speaker, I demand a recorded vote.

Mr. Chairman, I have an amendment at the desk.

Mr. Chairman, I rise in support of my amendment, which would exempt H.R. 985's unnecessary and burdensome class action provisions all class actions asserting civil rights claims.

Class actions are an important litigation tool that consumers, workers, and anyone else who has suffered injury can use to vindicate their rights. They are also a critical mechanism for enforcing public policy and are especially key in the enforcement of Federal civil rights laws.

For instance, plaintiffs in employment discrimination cases who seek backpay because of an adverse employment decision often pursue class actions because such cases tend to be the kind that are well-suited for class treatment. These cases typically concern multiple victims who were subjected to the same discriminatory employment practice or policy.

While damages awarded pursuant to a single plaintiff may not be large enough to deter the employer's alleged wrongdoing, aggregate damages awarded to plaintiffs as a result of class action would have a deterrent effect.

Unfortunately, this bill, H.R. 985, requires class action plaintiffs to prove at the certification stage that every potential class member suffered the same type and same scope of injury, a requirement that is obviously virtually impossible and cost prohibitive to meet.

This onerous requirement would effectively deter employment discrimination and other civil rights plaintiffs from proceeding with any class action.

As if this provision were not onerous enough, H.R. 985 would also harm civil rights plaintiffs by making it virtually impossible to pursue class actions pursuant to Rule 23(c)(4) of the Federal Rules of Civil Procedure.

All Federal appeals courts interpret that provision as allowing courts to certify a class limited to one issue in a case, such as liability, without having to certify a putative class for the entire cause of action.

Allowing courts to decide common questions within a case, while permitting other issues to be determined on an individual basis, would promote judicial efficiency, which is also one of the principal benefits of class actions.

H.R. 985, however, would prohibit certification of such ``issue'' class actions unless the putative class for the entire cause of action is certified, which would only further delay and possibly deny justice for plaintiffs.

This provision would have a particularly devastating impact on civil rights class actions that often can only be maintained as to particular issues, such as liability.

Indeed, for these, and many other reasons, including the bill's mandatory appeals provision, its automatic stay of discovery, and its draconian and unworkable standards for setting attorneys' fees, 123 civil rights groups and organizations have written a letter to the Judiciary Committee in strong opposition to H.R. 985, which I include in the Record.

March 7, 2017.

Re Strong Opposition to H.R. 985--Section 2.

Hon. Paul Ryan,

Speaker, House of Representatives,

Washington, DC.

Hon. Nancy Pelosi,

Minority Leader, House of Representatives,

Washington, DC.

Dear Speaker Ryan and Leader Pelosi: We understand that the

House will soon consider H.R. 985, the ``Fairness in Class

Action Litigation and Furthering Asbestos Claim Transparency

Act of 2015.'' The 123 signatory civil rights organizations

and advocates write to strongly oppose Section 2 of H.R. 985.

The bill will undermine the enforcement of this nation's

civil rights laws and upend decades of settled class action

law. This sweeping and poorly drafted legislation will create

needless chaos in the courts without actually solving any

demonstrated problem. In this letter, we highlight the most

egregious of its many harms.

As advocates for the marginalized and often invisible

members of our society, we write to remind House members that

class actions are critical for the enforcement of laws

prohibiting discrimination in employment, housing, education,

and access to public areas and services. As the Supreme Court

has recognized, class actions provide ``vindication of the

rights of groups of people who individually would be without

effective strength to bring their opponents into court at

all.'' Amchem Products, Inc. v. Windsor, 521 U.S. 591, 617

(1997). Courts have interpreted Rule 23 of the Federal Rules

of Civil Procedure, the federal class action rule, over

decades and the Advisory Committee on Civil Rules has,

through its deliberative process, reviewed and amended the

rule to ensure its fair and efficient operation. No further

revisions are needed at this time.

H.R. 985 Adds Years of Additional Delay, Expense, and Disruption

One of the stated purposes of the bill is to ``assure . . .

prompt recoveries,'' yet it includes provisions that will

extend the duration of cases by years and add exponentially

to the expense on both sides.

The bill allows for an automatic appeal--in the middle of

every case--of the class certification order. Such appeals

are extraordinarily disruptive and typically add one to three

years to the life of the case. While the case sits in an

appellate court, expenses and fees rise, memories fade, and

injured victims remain without justice. Automatic appeals of

all class certification orders will clog our already-taxed

Courts of Appeals. Appeals of class certification rulings are

already permitted at the discretion of the Courts of Appeals.

An appeal of every class certification ruling is unnecessary.

The bill similarly builds in an automatic stay of discovery

in the district court whenever an alleged wrongdoer files any

one of a list of motions. This is an invitation for

gamesmanship and delay, and will deprive judges of the

ability to properly manage their cases.

The bill, by its terms, applies to all cases pending upon

the date of enactment. This means that hundreds of cases that

have been litigated and certified under existing law would

start from scratch with new standards, new class

certification motions, and new automatic interlocutory

appeals. The resulting waste of judicial resources would be

enormous.

Civil Rights Injuries Are Never Identical and Are Already Subject to

Rigorous Judicial Review

H.R. 985 imposes a new and impossible hurdle for class

certification. It requires that the proponents of the class

demonstrate that ``each class member has suffered the same

type and scope of injury.'' At this early stage of a civil

rights class action, it is frequently impossible to identify

all of the victims or the precise nature of each of their

injuries.

But even if this information were knowable, class members'

injuries would not be ``the same.'' As a simple example,

those overcharged for rent will have different injuries. In

an employment discrimination class action, the extent of a

class member's injuries will depend on a range of factors,

including their job position, tenure, employment status,

salary, and length of exposure to the discriminatory

conditions. For this reason, nearly forty years ago, the

Supreme Court developed a two-stage process for such cases in

International Brotherhood of Teamsters v. U.S., 431 U.S. 324,

371-72 (1977). In the first stage, the court determines

whether the employer engaged in a pattern or practice of

discrimination. If the employer is found liable, the court

holds individual hearings to determine the relief (if any)

for each victim. The Supreme Court recently reaffirmed the

use of the Teamsters model for discrimination class actions

in part because of the individualized nature of injuries.

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 366 (2011).

Thus, this bill would overturn the approach established four

decades ago to permit a class of victims of discrimination to

seek effective relief.

For the same reason, the bill's limitation on ``issue

classes'' will impede the enforcement of civil rights laws.

Under current practice, the district court will decide in

some cases that the best approach is to resolve the

illegality of a discriminatory practice in an initial

proceeding, and then allow class members to pursue individual

remedies on their own. In such cases, class certification for

the core question of liability (often a complex proceeding)

will be tried and resolved just once for the benefit of the

many affected individuals. These issue classes can promote

both efficiency and fairness. Section 1720, however, would

deprive courts of this ability that they currently have to

manage class actions to ensure justice.

Requiring the Early Identification of Class Members Is Unnecessary

Section 1718 seeks to impose a heightened standard for

identifying class members, an approach that has been rejected

by the majority of circuits to have considered the question.

This stringent standard would not further any interest that

is not already adequately protected by Rule 23, which

requires that the court consider whether the case is

manageable and the class action device is the ``superior''

method for fairly and efficiently resolving the case.

Moreover, Sec. 1718 would impose a nearly insurmountable

hurdle in situations where a class action is the only viable

way to pursue valid but low-value claims. In such cases,

records of who has been affected may have been destroyed by

the wrongdoer, may be incomplete, or may have never existed

at all. In those cases, individual notice to all class

members may be impossible. But, without class certification

in these situations, class members who have valid claims and

who can be identified would not be allowed to recover. The

bill also ignores the important objective of deterring and

punishing wrongdoing, and encourages defendants not to

maintain relevant records.

Arbitrary and Unworkable Standards for Attorneys' Fees Undermine Civil

Rights Enforcement

Civil rights class actions are often about systemic reforms

that benefit the most vulnerable. In many cases, the sole

remedy is an injunction to change illegal laws or practices.

To ensure that non-profit legal organizations and other

advocates are able to undertake these important, complex, and

often risky cases, dozens of our civil rights laws

incorporate fee-shifting provisions. If a case is successful,

the judge awards a reasonable fee based upon the time that

the advocates have spent working on the case. This method of

determining attorneys' fees provides for consistent and

predictable outcomes, which is a benefit to all parties in a

lawsuit.

H.R. 985 would entirely displace this well-settled law with

a standard long ago rejected as arbitrary and unworkable.

Under the bill, attorneys' fees would be calculated as a

``percentage of the value of the equitable relief.''

Sec. 1718(b)(3). But how is a judge to determine the cash

value of an integrated school, a well-operating foster care

system, the deinstitutionalization of individuals with

disabilities, or myriad other forms of equitable relief

secured by civil rights class actions? Asking judges to

assign a price tag in such cases is an impossible task and

would lead to uncertainty and inconsistency.

Non-profit organizations cannot bear the risk of these long

and expensive cases if, at the end, their fees are calculated

under this incoherent and capricious standard. Indeed, the

bill creates an incentive for defendants to prolong the

litigation so as to make it economically impossible for

plaintiffs' attorneys to continue to prosecute the

litigation.

These serious issues warrant, at a minimum, careful

consideration and public hearings. A rush to pass such far-

reaching and flawed legislation will deny access to justice

for many and undermine the rule of law.

Respectfully Submitted,

Jocelyn D. Larkin,

Executive Director, Impact Fund.

Signatories

1. 9to5, National Association of Working Women

2. A Better Balance

3. Advancement Project

4. American Association of University Women

5. American Civil Liberties Union

6. Asian American Legal Defense and Education Fund

7. Asian Americans Advancing Justice--Asian Law Caucus

8. Asian Americans Advancing Justice--Los Angeles

9. Association of Late Deafened Adults

10. Atlanta Women for Equality

11. Baltimore Neighborhoods, Inc

12. Business and Professional Women/St. Petersburg-Pinellas

13. California Employment Lawyers Association

14. California Women's Law Center

15. Campaign for Educational Equity, Teachers College,

Columbia University

16. Center for Children's Advocacy

17. Center for Independence of the Disabled, New York

18. Center for Justice and Accountability

19. Center for Popular Democracy

20. Center for Public Representation

21. Center for Responsible Lending

22. Central Alabama Fair Housing Center

23. Centro Legal de la Raza

24. Chet Levitt Fund for Employment Law

25. Child Care Law Center

26. Children's Law Center, Inc.

27. Children's Rights

28. Civil Rights Education and Enforcement Center

29. Colorado Cross-Disability Coalition

30. Columbia Legal Services

31. Communities for a Better Environment

32. Community Development Project of the Urban Justice

Center

33. Community Justice Project

34. Community Legal Services in East Palo Alto

35. Dade County Bar Association Legal Aid Society

36. Disability Law Center

37. Disability Rights Advocates

38. Disability Rights Education and Defense Fund

39. Disability Rights Maryland

40. Domestic Violence Legal Empowerment and Appeals Project

41. Earthjustice

42. EarthRights International

43. Empire Justice Center

44. Environmental Justice Coalition for Water

45. Equal Justice Center

46. Equal Justice Society

47. Equal Rights Advocates

48. Farmworker Justice

49. Florida Justice Institute, Inc.

50. Florida Legal Services, Inc.

51. Florida's Children First

52. Freedom Network USA

53. Heart of Florida Legal Aid Society Inc

54. Homeowners Against Deficient Dwellings

55. Human Rights Defense Center

56. Human Trafficking Pro Bono Legal Center

57. Impact Fund

58. Institute for Science and Human Values

59. Jacksonville Area Legal Aid, Inc.

60. Justice in Motion

61. Lambda Legal

62. LatinoJustice PRLDEF

63. Law Foundation of Silicon Valley

64. Lawyers Civil Rights Coalition

65. Lawyers' Committee for Civil Rights of the San

Francisco Bay Area

66. Lawyers' Committee for Civil Rights Under Law

67. Legal Aid at Work (formerly Legal Aid Society--

Employment Law Center)

68. Legal Aid Justice Center

69. Legal Aid of Manasota

70. Legal Aid of Marin

71. Legal Aid Service of Broward County, Inc.

72. Legal Aid Society of NYC

73. Legal Aid Society of Palm Beach County, Inc.

74. Los Angeles Center for Community Law and Action

75. Make the Road New York

76. MALDEF

77. Maurice & Jane Sugar Law Center for Economic & Social

Justice

78. Metropolitan Washington Employment Lawyers Association

79. Mississippi Center for Justice

80. NAACP Legal Defense and Educational Fund, Inc.

81. National Advocacy Center of the Sisters of the Good

Shepherd

82. National Center for Lesbian Rights

83. National Center for Transgender Equality

84. National Center for Youth Law

85. National Disability Rights Network

86. National Employment Law Project

87. National Employment Lawyers' Association

88. National Employment Lawyers' Association--New York

89. National Housing Law Project

90. National Immigration Law Center

91. National Law Center on Homelessness & Poverty

92. National Partnership for Women & Families

93. National Women's Law Center

94. New Mexico Environmental Law Center

95. North Carolina Justice Center

96. North Florida Center for Equal Justice, Inc.

97. Northwest Health Law Advocates

98. Oregon Communication Access Project

99. Prisoners' Legal Services of Massachusetts

100. Prison Law Office

101. Public Advocates

102. Public Counsel

103. Public Interest Law Project

104. Public Justice

105. Public Justice Center

106. Public Utility Law Project of New York

107. Rhode Island Center for Justice

108. San Diego Volunteer Lawyer Program, Inc.

109. Southern Center for Human Rights

110. Southern Legal Counsel, Inc.

111. Southern Poverty Law Center

112. Southwest Pennsylvania Chapter, National Organization

for Women

113. Southwest Women's Law Center

114. Tenants Together

115. Texas Fair Defense Project

116. Transgender Law Center

117. Uptown People's Law Center

118. Washington Lawyers' Committee for Civil Rights and

Urban Affairs

119. Washington State Communication Access Project

120. Western Center on Law & Poverty

121. Women's Employment Rights Clinic, Golden Gate

University

122. Women's Law Project

123. Workplace Fairness

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I demand a recorded vote.

Mr. Speaker, I demand a recorded vote.

Mr. Speaker, I demand a recorded vote.

Mr. Speaker, I yield myself such time as I may consume.

In 2014, in a unanimous ruling delivered by Chief Justice Roberts, the Supreme Court concluded that the police may not search a cell phone without first demonstrating probable cause.

Citing an obvious Fourth Amendment interest--namely, the right to be free from unreasonable search and seizure--in the vast amount of data we store on our personal devices, the Court wrote:

``The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple--get a warrant.''

With that decision, the Court took a bold step toward reconciling the Fourth Amendment with the advent of modern communications technology.

Today the House takes a similar step to reconcile our interests in privacy and due process with the realities of modern computing. We do so for the second time.

H.R. 387, the Email Privacy Act, recognizes that the content of our communications, although often stored in digital format, remains worthy of Fourth Amendment protection. And to investigators and government agents who seek access to our email, our advice is rather simple: get a warrant.

It is an idea whose time has long since come. So this bill will allow us to move to a clear, uniform standard for law enforcement agencies to access the content of our communications; namely, a warrant based on probable cause.

H.R. 387 also codifies the right of the providers to give notice of this intrusion to their customers, except in certain exigent circumstances that must be also validated by the court.

We should note the absence of a special carve-out from the warrant requirement for the civil agencies, like the Securities and Exchange Commission and the Internal Revenue Service.

Last Congress, in the Judiciary Committee, we reached quick consensus that a civil carve-out of any kind is unworkable, unconstitutional, or maybe both. I would have preferred to keep the notice provisions of the original bill, which are absent from the version we reported from committee.

In the digital world, no amount of due diligence necessarily tells us that the government accessed our electronic information. The government should have an obligation to provide us with some form of notice when intruding on a record of our most private conversations.

I fully understand that not everyone shares this view, and I am willing to compromise, for now, in order to advance the important reforms that we will adopt today.

I am proud of the work we have done. Last Congress, the House passed this legislation that has already been noted by 419-0. I hope that today we can send our colleagues in the Senate a similarly strong signal to pass this bill.

This legislation is several years in the making, and it should not be delayed any further.

Accordingly, I urge my colleagues to support H.R. 387, the Email Privacy Act.

I reserve the balance of my time.

Mr. Speaker, when the gentleman from New York (Mr. Nadler) was chairman of the Constitution, Civil Rights, and Civil Liberties Subcommittee in 2010, he held three hearings on various aspects of ECPA, including the need for a warrant requirement.

I yield 3 minutes to the gentleman from New York (Mr. Nadler).

Mr. Speaker, I yield 4 minutes to the gentleman from Colorado (Mr. Polis), a former member of the Judiciary Committee and the lead Democratic sponsor of this bill.

Mr. Speaker, I have no further speakers.

I yield back the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

I rise in opposition to H.J. Res. 40, a measure that would vacate an important rule issued by the Social Security Administration to help reduce gun violence.

This resolution of disapproval is particularly problematic because, pursuant to the Congressional Review Act, it would not only invalidate this rule but prohibit the agency from adopting substantially the same rule in the future, even an improved version of the rule. How unusual.

As we consider this resolution today, I ask my colleagues to consider, for just a moment, how we arrived at this point and, more precisely, what is at stake.

In 1968, after a decade of assassinations and gun violence, Congress worked to pass the Gun Control Act. That law lists certain categories of individuals who are prohibited from purchasing and possessing firearms, including felons, fugitives, those who

have renounced their citizenship, those who have been dishonorably discharged, and also those ``adjudicated mentally defective.'' Today, we don't commonly use that outdated and unfortunate terminology. Instead, we refer to the ``Federal mental health prohibitor,'' which remains an important--although challenging--feature of our Federal gun laws.

Because it was common sense that we needed a system to help prevent guns from getting into the hands of those who were legally prohibited from possessing them, Congress took bipartisan action to enact the Brady Act in 1993. That statute established a National Instant Criminal Background Check System--some call it NICS--and it requires federally licensed gun dealers to conduct checks on prospective purchasers in order to verify that they are not prohibited on the basis of the statutory categories.

Although unwisely limited only to sales conducted by licensed gun dealers, the NICS system is extremely beneficial as far as it goes. Critically, however, this background check system is only as good as the completeness of the records it includes. This fact was tragically underscored in 2007, when a student on the campus of Virginia Tech shot and killed 32 people. The shooter had a mental health record that was serious enough that it should have been reported to the system, but it was not.

As a result, Congress enacted the bipartisan NICS Improvement Amendments Act that same year in order to provide incentives for States to do a better job of submitting disqualifying mental health records to the system. The law also requires Federal agencies to submit any such information that they have. While some States have done a great job of complying with the law, others have not, which remains a critical challenge. As we expect States to do more to comply, we must also ensure Federal agencies are doing their part.

The rule under consideration, which was finalized last December after an extensive rulemaking process that considered more than 91,000 comments from the public, is intended to impact only a very narrow range of individuals whom the agency determines should be prohibited from possessing firearms under the statutory mental health prohibitor, which has been the law for decades. The rule applies only to those individuals who have a very severe, long-term mental disorder that makes them unable to do any kind of work in the American economy, including even part time or at very low wages.

These individuals must have been determined through an evaluation of all of the evidence that they are not capable of managing their own benefits and must be assigned a representative payee. This designation is given only after an individual is notified orally and in writing at the outset of the process that the gun eligibility determination would be the result of the assignment of a representative payee. After the determination is made, the affected individuals may appeal the decision to the agency and then, ultimately, to a Federal court.

Of course, we must avoid taking actions that would unfairly stigmatize individuals who suffer from mental illness or a disability. This is true in many respects, but, with regard to issues of public safety, we must recognize that people who suffer from mental illness should not be assumed to be dangerous. In fact, they are much more likely to be victims of crime than to be perpetrators. With those considerations in mind, my colleagues, it can be difficult to apply the mental health prohibitor, but, still, we must apply and enforce the law.

If I were proposing such a rule, I cannot say whether this process would be exactly what I would recommend. We have not held hearings on this issue, and we have not had the chance to examine all appropriate considerations. I can say that the agency has undertaken a commendable effort in accordance with President Obama's directive to ensure that the NICS background check system has the information that it believes, after a thorough rulemaking process, corresponds to a longstanding category of firearms prohibition.

Accordingly, we should not completely disregard the agency's efforts, and I urge my colleagues to strenuously oppose H.J. Res. 40.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 2 minutes to the gentleman from California (Mr. Thompson).

Mr. Speaker, I yield 2 minutes to the gentleman from Texas (Mr. Doggett).

Mr. Speaker, I yield an additional 1 minute to the gentleman from Texas.

Mr. Speaker, I yield 2 minutes to the gentleman from New York (Mr. Higgins).

Mr. Speaker, I yield myself such time as I may consume.

Members of the House, we have some organizational support for opposing this resolution. The first is the AFL-CIO, one of our largest unions in the country. The second is the Consumer Federation of America, and then there is this great organization, Everytown for Gun Safety across the country.

In addition, the Americans for Responsible Solutions organization is opposed to H.J. Res. 40. Finally, the Brady Center to Prevent Gun Violence is also opposed to this measure, as is the Consumer Federation of America.

If Members believe this rule needs further refinement or that it does not afford adequate due process, then we should have the conversation with an eye toward improving the rule, but that is not what has been done. Unfortunately, this is what we are not discussing today. Instead, H.J. Res. 40 would invalidate all aspects of this rule and prohibit the agency from adopting substantially the same rule.

We should not summarily dismiss this rule, which would undermine the effort to make the NICS more effective. If H.J. Res. 40 passes Congress and is signed into law, some individuals will be able to pass firearm background checks solely because Congress prevented relevant records from being submitted to the system.

The Social Security Administration's rule is about making Americans safer from the scourge of gun violence and, unfortunately, believe me, H.J. Res. 40 would do the opposite.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself such time as I may consume,

and I would like to emphasize several points additionally.

The degree of impairment required for reporting to the NICS is extremely high, to the extent that someone is not capable of working at any job in the economy, no matter how basic. Someone receiving Social Security benefits as a retiree, even if they have mental impairment and have been assigned a representative payee, would not meet the criteria for reporting to the NICS because they are not receiving benefits because of disability.

Further, the rule went into effect in January, but compliance is not required until December of this year. This would only impact claims going forward and will not involve retroactively assessing individuals already receiving Social Security disability payments based on mental impairment.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 3 minutes to the gentlewoman from California (Ms. Judy Chu), my colleague, a member of the Judiciary Committee.

Mr. Speaker, I yield myself such time as I may consume.

Members of the House, this is a very serious matter. This rule, and I have to emphasize this, does not run afoul of the Second Amendment. You can oppose this--well, let's put it like this: The Heller Court, in the Supreme Court case, said that ``nothing in the Court's opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.'' I emphasize ``and the mentally ill.''

And it is in that sense that I join with the AFL-CIO, Consumer Federation of America, Everytown for Gun Safety, Americans for Responsible Solutions, the Brady Center to Prevent Gun Violence, and many thoughtful citizens who support the Second Amendment in opposing the measure that is on the floor now.

I urge Members to vote ``no.''

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I demand a recorded vote.

Madam Speaker, I rise in strong opposition to H.R. 7, the so-called ``No Taxpayer Funding for Abortion Act and Abortion Insurance Full Disclosure Act of 2017.''

The Majority marks the 44th anniversary of Roe v. Wade this week with its latest attempt to undo that decision's unequivocal recognition of a woman's constitutionally protected right to choose to terminate a pregnancy.

We must recognize this bill for what it really is. H.R. 7 is yet another attack by the Majority on women's health, a goal it accomplishes in several respects.

To begin with, H.R. 7 would make it virtually impossible for a woman to obtain abortion services even when paid for with purely private, non-Federal funds.

It achieves this end by denying Affordable Care Act tax credits to income-eligible women and small business employers who choose insurance coverage that includes abortion.

Through its novel tax penalty provisions, H.R. 7 departs radically from existing law, taking away women's existing health care and placing their health and lives at risk.

Despite the claims of its sponsors, H.R. 7 does not merely codify current law, but, rather, goes well beyond it to deny women basic health care services.

Moreover, to the extent it bans federal funding of abortion services, H.R. 7 is unnecessary, because such funding is already banned by the Hyde Amendment, and the Affordable Care Act maintains that ban.

For more than 30 years, Congress has prohibited federal funding of abortion, except in cases of rape, incest, or to save the life of the mother, through the Hyde Amendment and similar measures in annual appropriations bills.

Nothing in the Affordable Care Act changes this. That Act does not permit federal funding of abortion, and ensures that only private funds can be used to purchase abortion insurance coverage.

There is absolutely no risk that public money will be used to pay for abortion services.

So what is H.R. 7 really about? Plain and simple, it is part of the Majority's relentless war against women's health and constitutional freedoms.

Members should understand that a vote for H.R. 7 is not a vote to codify existing law. It is, instead, a vote to attack women's health and equality.

Finally, we should reject H.R. 7's permanent restriction on the District of Columbia's use of local funds that Congress has approved.

H.R. 7 not only infringes women's constitutional rights, but also intrudes deeply into local government decision-making by the District.

Women and families who live in the District should not be singled out for additional harm simply because of where they live.

Last Congress, the Obama Administration ``strongly oppose[d]'' a substantially similar bill, saying the legislation ``would intrude on women's reproductive freedom and access to health care; increase the financial burden on many Americans; [and] unnecessarily restrict the private insurance choices that consumers have today.''

I agree wholeheartedly with that analysis and, accordingly, I strongly urge my colleagues to oppose this dangerous bill.

Mr. Speaker, within hours of taking the oath as President of the United States, Donald Trump signaled that his much touted ``New Deal for Black America'' is just the same ``old deal'' of discrimination, voter suppression and establishment entitlement. In politics, as in life, actions always speak louder than words. And the speed of his repudiation of the inclusive agenda of the Obama administration shouts his intention to turn back the clock on civil rights for a broad swath of our nation.

Since the Supreme Court suspended the application of Section 5 of the Voting Rights Act in the Shelby County Case, African American communities around the nation have fought the passage of discriminatory voter identification laws as part of a scheme to suppress the vote. The states of Texas and North Carolina have been particular battlegrounds, where important victories were achieved in the federal courts. The work of civil rights advocacy groups received important support from the Voting Section of the DOJ Civil Rights Division in reversing some of the most aggressive state-passed voter suppression plans.

As many have feared, the election of Trump threatens to produce a radical change in support for voting rights from the White House. Unlike even President George W. Bush, who signed the reauthorization of Section 5 of the VRA, Trump has exhibited an hostility to voting rights not seen since the Civil Rights era.

By Friday afternoon, lawyers for the Department asked for a delay in the hearing scheduled for tomorrow on the Texas voter ID case, citing the change in presidential administrations. The motion noted that ``Because of the change in administration, the Department of Justice also experienced a transition in leadership, . . . and requires additional time to brief the new leadership of the Department on this case and the issues to be addressed at the hearing before making any representations to the Court.'' It is generally expected that DOJ will reverse course in the case.

This case is a bellwether of what can be expected from a Trump DOJ on civil rights. Given the size of Texas and the precedential impact of the case, the stakes in this litigation could not be higher for the minority community.

The voting law at issue in the case, known as SB 14, set strict requirements for permissible ID to vote. While it included such identification as a driver's license, passport and a concealed handgun license, it excluded identification like federal government or student IDs.

In July, the Court of Appeals for the 5th Circuit in New Orleans ruled that the law violated Section 2 of the Voting Rights Act because it disproportionately affected minorities. The Department of Justice had previously argued that the law violated the Voting Rights Act and was intended to directly impact the abilities of minorities to vote, as more than 600,000 minorities lacked the ID necessary under state law to vote.

The belief that the Civil Rights Division will change position and will be under attack is well founded. Last Thursday, it was reported that the Office of Community Oriented Policing Services, Violence Against Women Grants and the Legal Services Corporation would be target for elimination and the Civil Rights Division would have its funding cut as part of Trump plan for reducing the size of the federal government.

Most troubling, it was also reported that John M. Gore, an attorney who led the legal teams on several key cases attacking civil rights, would be the head of DOJ' s Civil Rights Division as the Deputy Assistant Attorney General for Civil Rights.

Gore was one of the defense attorneys who argued in court on behalf of North Carolina's legally dubious and discriminatory anti-transgender bill HB2. The bill blocks transgender people from using public bathrooms that align with their gender identity. The bottom line here is that Gore was on the side of discrimination in the country's most high-profile LGBTQ rights case of the past year. (Many will recall that this legislation generated a huge economic backlash against the state, including the relocation of major sporting events).

His record of being a legal champion for discriminatory causes appears to be a highlight of Gore's legal career. One of his main areas of expertise appears to be defending redistricting plans against claims of civil rights violations, with his online bio boasting of a number of successful such defenses.

One of the most high-profile civil rights cases Gore has litigated in recent years is the Florida Purge case. This case brought many of us to the floor to denounce yet another attempt at voter suppression that was designed to alter the balance of state politics. The state of Florida was found to have violated the National Voter Registration Act with a systemic purge of voters it suspected of being non-citizens. As the New York Times wrote of Florida's voter restriction attempt:

The program to identify and remove noncitizens from the

rolls prompted a national outcry and several lawsuits in 2012

because it was riddled with mistakes and was being pushed

through months before the election. A number of people on the

lists, which were sent by the state to county election

supervisors, were, in fact, citizens (including the two lead

plaintiffs in the lawsuit).

Just as we opposed the nomination of Sen. Jeff Sessions to serve as Attorney General, we must similarly build a record against John Gore to head the Civil Rights Division. We simply cannot entrust our legacy civil rights statutes to any person who has shown a lack of sensitivity and balance in protecting the interests of justice in our society.

Though Trump's inaugural speech invoked an image of my home City of Detroit, I fear what his vision will mean for my community and vow to continue the struggle for jobs, justice and peace. He stated that ``the time for empty talk is over. Now arrives the hour of action.'' I take him at his word and his actions send an unmistakable message: His action is to appoint a defender of discrimination to head the Civil Rights Division. His action is to retreat from an agenda on Community Oriented Policing. His action is to undermine affordable healthcare. His action is to appoint cabinet officials who fail to represent the mosaic that is America.

The Congressional Black Caucus took to this floor tonight to outline our response to the President's Inaugural Address & New Deal for African-Americans. While our views may not find much in common, I believe we can agree on this: the time for talk is indeed over and the hour for action has arrived. This caucus will not stand idly by while an administration attempts to turn back the clock. The greatness of America is found in its diversity, inclusiveness and empathy. That is why we are the beacon on the hill. Whether we fly, walk or crawl, we are committed to moving this nation forward and will not turn back.

Mr. Speaker, I, along with Representative Jerrold Nadler of New York, Representative Elijah E. Cummings of Maryland, and Representative Janice D. Schakowsky of Illinois, would like to thank Heather Sawyer for a decade of service to the House of Representatives. Heather Sawyer is a brilliant legal mind and incredible litigator. Her calm, clear-eyed professionalism has been instrumental in protecting the rights of marginalized Americans, including Americans with disabilities, the LGBTQ community, people of color, and women. As a senior and trusted counsel, she helped to roll back the worst civil rights abuses of the post-9/11 era.

Heather left the Georgetown Law Center to join the staff of the House Committee on the Judiciary in 2007. She was instrumental in working to pass the Americans with Disabilities Amendments Act to ensure that Americans with disabilities have the same protections as every other American. During her tenure on the Committee, she worked with Congressman Nadler to draft the Pregnant Workers Fairness Act, which built upon the ADA framework to protect pregnant women who need simple accommodations to stay in the workplace throughout their pregnancies.

Perhaps her most indelible legacy on the Judiciary Committee was her work on marriage equality. Heather worked with Congressman Nadler to draft and introduce the Respect for Marriage Act to overturn DOMA. She also helped draft the congressional amicus brief in the Windsor and Obergefell cases, the two landmark Supreme Court cases that paved the way for marriage equality in the United States.

Heather has always been a true champion of women's rights. For the last year, Heather has served as the Staff Director and General Counsel for the Select Investigative Panel, where she worked tirelessly to protect the rights of women, health care providers, and researchers. She navigated the Panel through a difficult and polarized investigation, and astutely defended the facts and the truth. Heather's command of House procedures and rules helped to ensure that the views of the Democratic Members were represented at every step, and she was instrumental in the Panel's ultimate findings and report. She vigorously fought on behalf of women's right to access reproductive health care services, and her brilliant legal analysis and oversight acumen were invaluable to the Panel.

Heather has never been afraid to go head to head with those who would threaten the rights enshrined in our Constitution. During the Bush Administration, Heather worked to expose illegal interrogation tactics and other human rights abuses. She helped Congressman Nadler write the State Secrets Protection Act and legislation to protect the privacy of electronic communications.

Heather is a bright, strategic, and immensely skilled attorney who has never faced a challenge she could not meet. She dedicated more than two years of her public service as the Chief Counsel for the Select Committee on Benghazi. In that role, she fought to defend the truth, expose procedural excesses, and to provide serious and substantive recommendations to improve the safety and security of Americans serving our country overseas. The Members she has served, the staff who have worked beside her, and the institution as a whole are better because of Heather.

On the most sensitive issues of the day, Heather worked side by side with Members of the Judiciary Committee to ensure that the government adhered to the Constitution and respected the basic human and legal rights of all people. Running through all of this work is Heather's uncompromising sense of justice. She simply will not shy away from a fight. Whether it was fighting against torture and the use of secret evidence, partisan attacks against Secretary of State Hillary Clinton on the Benghazi investigation, or anti-choice partisans who tried to intimidate doctors working on women's health issues.

Heather is a true champion of civil rights and civil liberties and of the Constitution itself and it was truly an honor to work by her side for these many years. We wish her all the best in her future endeavors.

Mr. Chairman, I yield myself such time as I may consume.

I rise in opposition, of course, to H.R. 5, the so-called Regulatory Accountability Act.

Under the guise of improving the regulatory process, H.R. 5 will, in truth, undermine that process and jeopardize the ability of government agencies to safeguard public health and safety, the environment, workplace safety, and consumer financial protections.

It is not a pleasant picture. The ways in which this legislation accomplishes this result are almost too numerous to list here, but, of course, I will mention a few.

For example, title I of the bill would impose more than 70 new analytical requirements that will add years to the rulemaking process.

Is that what we want to do? I don't think so.

Worse yet, many of these new requirements are intended to facilitate the ability of regulated entities--such as well-funded corporate interests--to intervene and derail regulatory protections they oppose. And it would function as a ``super-mandate,'' overriding critical laws that Congress specifically intended to prohibit agencies from considering costs when American lives are at stake.

Additionally, the bill creates numerous procedural hurdles in the rulemaking process, further endangering American lives through years of delay and increasing the likelihood of regulatory capture.

For example, H.R. 5 dramatically expands the use of formal rulemaking, a time- and resource-intensive process, requiring formal, trial-like hearings for certain rules. Formal rulemaking has long been roundly rejected for good cause as being excessively costly and ill- suited for complex policy issues.

The administrative section of the American Bar Association noted that ``these provisions run directly contrary to a virtual consensus in the administrative law community that the Administrative Procedure Act formal rulemaking procedure is obsolete.''

I am also concerned that H.R. 5 would impose an arbitrary, one-size- fits-all, 6-month delay on virtually every new rule. Specifically, title V of the bill will prohibit agency rules from becoming effective until the information required by the bill has been available online for 6 months with only limited exception.

Clearly, H.R. 5 fails to take into account a vast array of time- sensitive rules ranging from the mundane, such as the frequent United States Coast Guard bridge closings regulations, to those that protect public health and safety, such as forthcoming updates to the Lead and Copper Rule by the Environmental Protection Agency to reduce the lead in public drinking water.

Finally, title II of H.R. 5 would eliminate judicial deference to agencies and require Federal courts to review all agency rulemakings and interpretations of statutes on a de novo basis. The unfortunate result of this requirement is that the bill would empower a generalist court to override the determinations of agency experts, regardless of the judge's technical knowledge and understanding of the underlying subject matter.

By eliminating any deference to agencies, H.R. 5 would force agencies to adopt even more detailed factual records and explanations, which would further delay the finalization of critical lifesaving regulatory protections.

The Supreme Court has recognized that Federal courts simply lack the subject-matter expertise of agencies, are politically unaccountable, and should not engage in making substantive determinations from the bench. It is ironic that those who have long decried judicial activism now support facilitating a greater role for the judiciary in agency rulemaking.

These are only a few of the many serious concerns presented by H.R. 5, and, accordingly, I urge my colleagues to strongly oppose this dangerous legislation.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield 4 minutes to the gentleman from Virginia (Mr. Scott) who is a very active former member of the Judiciary Committee.

Mr. Chairman, I yield 3 minutes to the gentleman from Maryland (Mr. Cummings), the ranking member of the Committee on Oversight and Government Reform.

Mr. Chairman, I yield 2 minutes to the gentleman from Tennessee (Mr. Cohen), a senior member of our committee who has followed this matter very closely.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I continue to reserve the balance of my time.

Mr. Chairman, I continue to reserve the balance of my time.

Mr. Chairman, I yield 5 minutes to the gentlewoman from Texas (Ms. Jackson Lee), a senior member of the House Judiciary Committee.

Mr. Chairman, I yield an additional 2 minutes to the gentlewoman.

Mr. Chairman, I am pleased to yield 5 minutes to the gentleman from Georgia (Mr. Johnson), a distinguished member of the Judiciary Committee.

I yield an additional 1 minute to the gentleman.

I yield myself such time as I may consume.

Mr. Chairman, in closing, this has been an enlightening discussion because we have determined that H.R. 5 is based on the faulty premise that environmental and public safety protections kill jobs, result in economically stifling costs, and promote uncertainty.

In fact, regulatory protections that ensure the safety of American- made products unquestionably foster job creation and protect the competitiveness of our business and global marketplace. This explains why so many organizations--more than 150--strongly oppose this legislation.

Mr. Chairman, our constituents and the American citizens deserve something better than H.R. 5. We need legislation that creates middle class financial security and opportunity. We need sensible regulations that protect American families from economic ruin, that bring predatory financial practices to an end.

We need workplace safety protections that ensure hardworking Americans can go to work each day without having to risk their lives as a result of hazardous work environments.

Unfortunately, the measure before us does nothing to advance any of these critical goals, and so I must, therefore, oppose H.R. 5 and ask my colleagues to support a negative vote on this matter.

Mr. Chair, I yield back the balance of my time.

Mr. Speaker, I thank my colleague from Louisiana (Mr. Veasey) for opening up this part of our Special Order for which the Congressional Black Caucus has come together to more critically examine the nomination of Senator Jeff Sessions.

As the ranking member of the House Judiciary Committee, I led a joint statement in November that was signed by every Democratic member of the Judiciary Committee opposing Senator Sessions' nomination for United States Attorney General. The Attorney General is the chief law enforcement officer of the United States, charged with the administration of the criminal justice system and the enforcement of our civil rights. Senator Sessions is clearly unsuitable to lead the Department of Justice.

In 1986 testimony before the Senate Judiciary Committee, witnesses said that Mr. Sessions had referred to the NAACP, the National Association for the Advancement of Colored People, the Southern Christian Leadership Conference, and other civil rights groups, as both un-American and communist inspired. One prosecutor in the Alabama United States Attorney's Office testified that Mr. Sessions referred to him as ``boy'' and counseled him to be careful of what you say to White folks.

His appointment to the Federal branch was opposed by the Leadership Conference on Civil Rights, the National Association for the Advancement of Colored People, and other organizations. Senator Sessions has criticized the section 5 preclearance provisions in the Voting Rights Act, which I and many others have been fighting to restore since the 2013 Supreme Court Shelby County v. Holder decision.

In the 114th Congress, Senator Sessions opposed bipartisan criminal justice reform efforts. He has also opposed the reauthorization of the bipartisan Violence Against Women Act and nearly every immigration reform bill that has come before the Senate.

A vote to confirm Jeff Sessions as Attorney General is a vote against freedom and equality. So I join with many of my colleagues today in urging the Senate to oppose his nomination, and I thank my colleague for yielding to me.

Mr. Chair, H.R. 26, the ``Regulations from the Executive in Need of

Scrutiny Act of 2017,'' otherwise known as the REINS Act, would amend the Congressional Review Act to require that both Houses of Congress pass and the President sign a joint resolution of approval within 70 legislative days before any major rule issued by an agency can take effect.

Simply put, H.R. 26 would impose unworkable deadlines for the enactment of a major rule under procedures that could charitably be referred to as convoluted.

Under this bill, the House may only consider a resolution for a major rule on the second and fourth Thursday of each month. Keep in mind that typically 80 major rules are promulgated annually. Yet, there may be as little as just 15 days available to consider such measures based on the majority's legislative calendar for the current year.

Furthermore, Congress may only consider such resolutions within 70 legislative days of receiving a major rule. This process would constructively end rulemaking as we know it.

Now, Mr. Chair, the reason why my friends on the other side of the aisle say we need this kind of gumming-the-works legislation--is because they claim regulations stifle economic growth.

For example, they point to the outgoing administration and say that regulations promulgated during its tenure have hurt our Nation's economy.

What they fail to tell the American people is that it was the Republican George Bush's administration's economic policies that caused the Great Recession.

Without question, it was the lack of regulatory controls that facilitated rampant predatory lending, which nearly destroyed our Nation's economy.

It led to millions of home foreclosures and devastated neighborhoods across America. In fact, it nearly caused a global economic meltdown.

Nevertheless, as a consequence of strong regulatory policies implemented by President Obama through such measures as the Dodd-Frank Act, our Nation has recovered to a point where the unemployment has been cut nearly in half to less than 5 percent.

Yet, the REINS Act would reverse these gains by empowering Congress to control and override the rulemaking process, even in the absence of any substantive expertise.

More than 80 of the Nation's leading professors on environmental and administrative law have warned in connection with substantively identical legislation considered in the last Congress, that without this expertise, any congressional disapproval is more likely to reflect the political power of special interests.

Lastly, by upending the process for agency rulemaking so that Congress can simply void major rules through inaction, the REINS Act likely violates the presentment and bicameralism requirements of Article I of the Constitution.

As a leading expert on administrative law states: ``The reality is that the act is intended to enable a single House of Congress to control the implementation of the laws through the rulemaking process. Such a scheme transgresses the very idea of separation of powers, under which the Constitution entrusts the writing of the laws to the legislative branch and the implementation of the laws to the executive branch.''

The REINS Act will further encourage corporate giants to hold our country hostage through a deregulatory, profits-first agenda and facilitate a political influence process rivaling the destructive industrial monopolies from the past century.

In sum, H.R. 26, like the ``Midnight Rules Relief Act'' we considered yesterday on the House floor, is yet another blatant gift to big business to weaken the critical regulatory protections that ensure the safety of the air we breathe, the cars we drive, the toys we give our children, and the food we eat.

Accordingly, I strongly urge my colleagues to oppose this ill- conceived bill.

Mr. Chairman, I have an amendment at the desk.

Mr. Chairman, my amendment would exempt from H.R. 26, the REINS Act, rules issued to reduce the amount of lead in public drinking water.

The ingestion of lead, of course, causes serious harmful effects on human health, even at low exposure levels. That is why the Environmental Protection Agency has set the maximum contaminant level for this toxic metal in drinking water at zero.

According to the EPA, young children, infants, and fetuses are particularly vulnerable to lead because the physical and behavioral effects of lead occur at lower exposure levels in children than in adults. The Agency reports that, in children, low levels of exposure have been linked to damage to the central and peripheral nervous systems, learning disabilities, shorter stature, impaired hearing, and the impaired formation and function of blood cells.

Take, for example, the Flint water crisis, which I have a little experience with, which was a preventable public health disaster. While much blame for the Flint water crisis lies with unelected officials who prioritize saving money over saving lives, the presence of lead in drinking water is, unfortunately, not unique to Flint. In fact, the drinking water of, potentially, millions of Americans may be contaminated by lead.

My amendment highlights one of the most problematic aspects of H.R. 26: that it could slow down or completely block urgent rulemakings that protect health and safety. This is because Members simply lack the requisite scientific or technical knowledge to independently assess the bona fides of most regulations, which are often the product of extensive research and analysis by agencies as well as input from effective entities and the public.

As a result, Members would have to make their own determinations based on their own--usually inexpert--views and limited information. Worse yet, some may be persuaded to disapprove of a rule in response to a wide-ranging influence exerted by outside special interests that favor profits over safety.

My amendment simply preserves current law with respect to regulations that are designed to prevent the contamination of drinking water by lead. Accordingly, I sincerely urge my colleagues to support this amendment.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I ask unanimous consent to reclaim my time.

Mr. Chairman, I yield 1\1/2\ minutes to the distinguished gentleman from Georgia (Mr. Johnson), a member of the Judiciary Committee.

I yield back the balance of my time.

Mr. Chairman, I demand a recorded vote.

Mr. Speaker, I demand a recorded vote.