C. Cox

Mr. COX

Mr. COX. Mr. Speaker, I yield 4 minutes to the gentleman from Ohio (Mr. Chabot), the chairman of the Subcommittee on the Constitution of the Committee on the Judiciary.

Mr. COX

Mr. COX. Mr. Speaker, I thank the gentleman for yielding time to me. Mr. Speaker, we are here because of patients. Patients are not getting care. Trauma centers are closing. Emergency rooms are closing. OB-GYNs are leaving their practice. Women are without health care. That is why we are here. On June 30 of this year, Methodist Hospital in south Philadelphia, which had been delivering babies since 1892, closed its doors. They closed their maternity ward and they stopped delivering babies. This is going on all over the country. In Nevada, in all of southern Nevada, now, there is no trauma center. Southern Nevada's only trauma center closed its doors in July. Las Vegas is now the only city of its size without any care for such people in these circumstances. Our intention is to ensure that no more patients are denied the care they deserve. We have heard there was a Democratic amendment that should have been made in order that would have ensured that savings from this bill, which the Congressional Budget Office estimates at $14 billion, $14 billion more available to go into health care, into hospitals, into Medicare givebacks, into quality of care, that we should have had this amendment that guaranteed that savings went to doctors. Somebody should ask whether the doctors supported that amendment, because they did not. The way this amendment was written, the premiums would still have been high because the awards still would have had to be paid, this time to a trustee instead of to the trial lawyers, but the premiums would not have come down. That is why doctors did not support the amendment. Somebody made the claim that the Dalkon shield case, bringing up the old horribles of the past, that damages would not have been awarded in that case had this bill been law. That is completely false. In 1976 Congress changed the law, post-Dalkon shield, to require pre-market approval for devices. The House and Senate reports on that legislation specifically mentioned Dalkon shield as something that would have been kept off the market if we had had pre-market approval in the law. What this bill says is if a device has been approved by the FDA, then there will not be punitive damages; in other words, if people comply with the pre-market approval requirements, why should the lawyers be able to claim that there was some kind of willful, egregious, and so on kind of injury committed. In California, we have had this system a long time. I have heard some people say that California's premiums have gone up faster than inflation. Of course they have, they have gone up 150 percent since this law has gone on the books. But at the same time, we have to tell the whole story, malpractice premiums in the rest of the country have gone up 500 percent. This has saved a great deal of money for us in California. Medical liability insurance premiums in constant dollars have actually fallen in California by more than 40 percent, and injured patients are receiving compensation more quickly in California than in the United States as a whole. Injured patients receive a larger share of the awards. This is all about patients; it is all about making sure that their doctors can serve them. That is why doctors support this bill. That is why patients support this bill. It is why it is high time that we pass this bill.

Mr. COX. Madam Speaker, I want to thank the gentleman from New York for yielding me this time. He is exactly right. What we are talking about doing here is making sure that all of us who have agreed to pay the cost of this system through the insurance system, we all pay for it; that is where the money comes from, to make sure that we all agree that we will pay for unlimited compensation for people who are the victims of medical malpractice, that we will pay for 100 percent of any imaginable cost, 100 percent of all medical costs, 100 percent of lost wages, 100 percent of lost future earnings, 100 percent of any rehabilitation costs; obviously, 100 percent of any medical expenses, doctors, nurses, hospitals, prescription drugs, nursing home care, assisted living, whatever it is, 100 percent of all of these things. But what we are trying to do is save the patients from a system right now that is falling down all around them. Doctors are getting out of practice; whole hospitals are shutting down, OB-GYNs are not delivering babies any more. People are not getting care. There is a crisis in this country. We had extraordinary testimony before the Committee on Energy and Commerce. We heard that in Nevada, for example, southern Nevada is without a trauma center right now; and it is directly attributable to this malpractice crisis. We want to do what we have done in California. The law has worked, as the gentleman from New York described. On June 30 of this year, Methodist Hospital in south Philadelphia, which has been delivering babies since 1892, closed its doors because of this crisis. They are not going to be delivering babies any more. Women need health care; men need health care. We need doctors, we need care, we need treatment. The Congressional Budget Office, as the gentleman from New York pointed out, said that if we pass this bill, we will have $14 billion more available to help our hospitals, available for health care, available to keep the cost of health care down so more people will have insurance. That is what this is all about. The only people who will suffer if this bill is passed are those in their enormous mansions right now that are skimming the top in the gold- plated tort system by faking more than all of the costs that I described for themselves. In California, what has happened, our premiums, of course, they have gone up; they have gone up 140 percent, but at the same time, the rest of the country has gone up over 5 percent, so we have a system that is much more under control. People are healthier in California. In lawsuits, plaintiffs are getting a greater share of the recoveries in California than they are in other States. And they are getting the recoveries faster. There is no question that the HEALTH act is good for everyone, for patients, for doctors, for the whole health care system, for hospitals, for nurses, for everyone that has come to this Congress. Madam Speaker, I urge the enactment of this rule and passage of the legislation.

Mr. COX

Mr. COX. Mr. Speaker, I would observe in response to the previous speaker that the House has acted on prescription drugs. We have passed a prescription drug bill here to add a prescription drug benefit for Medicare beneficiaries. The President has said he will sign it and it awaits action in the Senate where the bill is not moving. The same is true of the death tax. The House has acted. We have already, Democrats and Republicans, voted on a bill by majority vote here and sent it to the Senate. It is the bill the President has asked for and he will sign it. It makes permanent the repeal that is already in existing law. We repealed the death tax originally because a majority of the Congress and a big super majority of the American people recognize that the virtual confiscation of an individual's after-tax lifetime savings is wrong and immoral. It was said just a moment ago that this somehow affects only the rich. To the contrary, the problem has been the forced liquidation of small businesses, and the people that are laid off, who lose their jobs at ranches and farms and small businesses across the country are not the rich. In fact, the rich person is the only one who does not care because he is dead by definition, but, rather, they pay a 100 percent tax because they lose their jobs, they lose everything. By destroying jobs, by destroying small businesses, the death tax has properly earned the opprobrium of the American people. Now, in the other body they slipped in a mickey. Repeal expires somehow in 10 years. That 10 years is coming closer so it is January 1, 2011 that we will have the death tax right back again, even though it has been repealed. That is why the New York Times referred to this as the ``Throw Mama From the Train Act.'' Whether you are for or against a death tax, nobody can be in support of this provision that has a repeal and then springs back to life in 10 years. The House has acted and now both the House and the American people want the Senate to act on permanent death tax repeal. announcement by the speaker pro tempore

Mr. COX

Mr. COX. Mr. Speaker, today is Memorial Day for the victims and the heroes of September 11. It is a time to honor the people who have died and the people who still live. It is important as we grieve for the victims that we keep in mind how many people are alive today because of the efforts of those who helped them, many of them still alive. Today it was my honor, along with Senator Ben Nighthorse Campbell of Colorado, to honor and recognize 11 members of our Park Police here in Washington, D.C. who were heroes and first responders on that day. It was an interesting way to recognize them. There was a crosscountry motorcycle ride organized by citizens from all of our districts and States across the country. It started out in Orange County, California, went to San Diego, California, 3,500 miles later it picked up hundreds of riders and came here to the Nation's capital. Like Ben Campbell, I am a Harley rider and so I was happy to join them. That is why I found myself in a position to be able to bestow these glass plaques to our first responders. First, the riders themselves, our constituents. They raised $1 million for the World Trade Center Miracles Foundation just from among the riders. In that they were like the people who responded heroically on September 11. They put aside their concerns and put first the needs of others. That is what people all around our country are doing in response to September 11. Along their 3,500 mile route, they stopped in places like Wichita, Kansas, where they dedicated an evening to the family of Daniel Nolan. He perished in the World Trade Center. A few days later they were in Illinois at the Champaign County Fairgrounds celebrating the important work of first responders. Only yesterday, they traveled to Stoney Creek School in Shanksville, Pennsylvania, where the students had built a memorial to the heroes of Flight 93. At every step along the way, they honored the dead and the living, as we do today. This coast-to-coast effort culminated in the honoring of 11 heroes who live among us in Washington, D.C. from the United States Park Police; and I would like to mention their names on the floor. First, two members of the motorcycle unit, Lieutenant George F. Wallace, commander, and Sergeant Daniel P. Beck, supervisor of the unit. They were in front of the Capitol today. They saw what had happened at the Pentagon from this side of the river, and they did what heroes do: they went right to the middle of that danger. They were two of the first uniformed police at the Pentagon on the scene. They assisted in the initial evacuation of the wounded. Their efforts helped ensure that those injured who were still alive received immediate care, and for that, obviously, those men and women, their families, and all of us are grateful. After the arrival of other local police and fire units, these officers continued to work. They cleared the vicinity and organized the evacuation of personnel from the monumental core area. There were nine others outside the Capitol who were similarly honored. The members of the United States Park Police Aviation Unit, Eagle One and Eagle Two. Eagle One includes Sergeant Ronald A. Galey, pilot; Sergeant John E. Marsh, rescue technician; and John J. Dillon, rescue team officer. Eagle Two includes Lieutenant Phillip W. Cholak, aviation unit commander; Sergeant Bernard T. Stasulli, assistant aviation unit commander; Sergeant Keith E. Bohn, pilot; Sergeant Kenneth S. Burchell, copilot; and physician assistant Keith Kettell and Jason Kepp, medic, of the Uniformed Services University. Here is what these people did on September 11. At approximately 9:40, the United States Park Police received an emergency call from Reagan National Airport tower notifying them that a plane had crashed in the vicinity of the Pentagon. They did not know yet what had happened. Members of Eagle One immediately lifted off, and they flew right into the center of the disaster, hovered right over the Pentagon, and they honored an FBI request and activated their microwave downlink and provided a live video feed of exactly what was going on at that moment. Just as Eagle One began to provide this live feed, personnel at Reagan National Airport abandoned the airport tower and said they could not see anything because of the smoke. They requested that these people, the names I just gave you, take over responsibility for all of the air space, and they did. They took control over all of the tower's responsibility. Even as Eagle One completed this assignment, Sergeant March requested helicopters from the Maryland State Police, MedStar and AirCare, and coordinated with ground units to establish a landing zone, honoring a request from the Arlington County Fire Department to transport patients to regional burn centers. Meanwhile, Eagle Two's crew responded to its call of duty and loaded the mass casualty kit and additional equipment on board their aircraft. They landed on the west side of the Pentagon and immediately began coordinating the transport of 11 priority-one burn patients. While Eagle One directed MedStar and AirCare aircraft into the landing zone to medevac additional patients, Eagle Two transported two of these patients to the Washington Hospital Center. Those people are alive and doing much better today as a result of these heroic efforts. As a lasting example of their heroic efforts, the U.S. Park Police Aviation Unit responded to a final request of the Arlington County Fire Department to transport a battalion chief of the Pentagon Fire Command Center for a 1-hour flight over the crash site because he was directing the firefighting efforts on the ground from their craft. Those are just some of the heroes of September 11. They live among us here. It was, as I said, my honor to present them with citations this morning. But as we honor these first responders, I think we have to remember that, as we draw inspiration from their work, they are still there every day protecting our neighborhoods. They are still there every day protecting us from threats, whether it be fire or a terrorist attack. Because of their bravery, which we take so much for granted, we have a wonderful future to look forward to in this country. I have no doubt that we will succeed in our efforts in the war on terror, and I have no doubt that we will owe a continuing and ever- deeper debt of gratitude to these men and women to protect and defend our country. I am grateful for the opportunity to honor these men and women.

Mr. COX

Mr. COX. Mr. Chairman, I yield myself such time as I may consume. This amendment will specifically include cybersecurity as a function of the Department of Homeland Security. The amendment is supported by the Bush administration, and it was crafted with the assistance of the Committee on Energy and Commerce; and, Mr. Chairman, I would like to commend the distinguished gentleman from Louisiana (Mr. Tauzin), the chairman of the Committee on Energy and Commerce, and the distinguished gentleman from Michigan (Mr. Dingell), the ranking member, for their work in putting together this provision. Just this week, the Committee on Government Reform received testimony warning of the significant threat of attacks on our Nation's information infrastructure. We learned how terrorists or hostile foreign states are building the capability to launch computer attacks on critical systems with the aim of severely damaging or disrupting national defense and other critical operations. While much of this information is necessarily secret, there is ample open source information we can discuss on the floor this evening. The Washington Post, in a recent page one story on cyberattacks stated, ``Terrorists are at the threshold of using the Internet as a direct instrument of bloodshed. The new threat bears little resemblance to familiar financial disruptions by hackers responsible for viruses and worms. It comes, instead, at the meeting points of computers and the physical structures that they control. By disabling or taking command of the floodgates in a dam, for example, or of substations handling 300 volts of electric power, an intruder could use virtual tools to destroy real world lives and property.'' The amendment that I am offering will make it clear that responsibility for mounting a coordinated national effort at cybersecurity rests with the Department of Homeland Security. Specifically, it will designate the position of Under Secretary for Informational Analysis and Infrastructure Protection as the individual in the United States government who is specifically charged with cybersecurity. It provides that the Under Secretary is responsible for preventing and defeating computer attacks aimed at America's electric power production, our electric power distribution, including power grids, our information technology systems, both commercial and public telecommunication systems, satellites, the banking system, electronic commerce, and emergency preparedness systems, including our civil defense network. This amendment is needed for two reasons: First, while the base bill gives the new Department of Homeland Security the responsibility of protecting our Nation's critical infrastructure, this term is left largely undefined. When it comes to our Nation's information technology and communications infrastructure, we want there to be no mistake, no ambiguity. This amendment clarifies that when we use the term ``infrastructure'' in this Act, we are talking about more than roads and sewers. By naming the specific threats we know that we face today, and by carefully enumerating the major critical information systems we intend to protect, we will be certain of consolidating both responsibility and authority for this function in one person in the Department of Homeland Security. The second reason this amendment is needed is to ensure that the Department of Homeland Security will work to protect not just the government's, but the entire Nation's critical communications, power, and information technology assets. As much as 90 percent of our Nation's critical information technology infrastructure, such as financial records, energy distribution, and communication systems are privately owned and managed. Cybersecurity is, thus, an issue that goes far beyond the Federal Government's own assets. Last November, in testimony before the House Committee on Energy and Commerce, former Representative Dave McCurdy, now the head of the Internet Security Alliance, reported that the private sector is under constant widespread and destructive cyberattack. He noted that over 80 percent of the Internet is owned and operated by the private sector. Two years ago, the Carnegie Mellon Software Engineering Institute documented more than 20,000 incidents of cyberattacks against private U.S. firms. Last year, the following year, in 2001, that number of cyberattacks nearly doubled.

Mr. COX. Mr. Chairman, I offer an amendment.

Mr. COX

Mr. COX. Mr. Speaker, on rollcall No. 331, the first of two amendments offered by Mr. Flake, I was recorded as ``aye'' but intended to vote ``No.'' For the record, I oppose the amendment.

Mr. COX

Mr. COX. Mr. Speaker, I thank the chairman for his extraordinary good work. Fraud and unfair dealing are the enemies of the free enterprise system. And as we can see from the turmoil in our markets, our country is paying a very high price because of the corporate fiduciaries who have broken faith with their employees and their investors. We have tough laws on the books to deal with all manner of crime, including corporate crime; but just as bacteria mutate to avoid the latest antibiotics, those who cook the books are constantly changing their recipes, and we have to keep our laws and our remedies up to date. Enron, Global Crossing, WorldCom, and the other cases that we have seen have all centered around accounting frauds. Abuses of accounting rules were central to each of these cases. Using the regulatory thicket of detailed accounting rules, the malefactors in these cases intentionally structured sham transactions to disguise their true financial condition. That is why the central reform in this legislation is the creation of an accounting oversight board to see to it that accounting standards once again make financial reports truthful, honest, and clear. As we raise the legal standard here today, we should bear in mind our obligations to do still more to raise ethical standards so that the best and the brightest will continue to want to join the accounting profession; so that our most experienced citizens, possessed of good judgment, are willing to undertake the significant oversight responsibilities on corporate boards of directors; and so that entrepreneurs will still take the risks and dream boldly without fear of being second-guessed if the race is not won. This is an important step we are taking today, Mr. Speaker. I am very happy to join in support of this conference report.

Mr. COX

Mr. COX. Mr. Chairman, very shortly, we will see the anniversary of September 11. At this point, reflecting back on the events of last year, we can take comfort that the entire civilized world has joined us in condemning the acts of terrorism committed here in Washington, in New York, and in Pennsylvania. Nowhere has this support for our war on terrorism been stronger than in our own hemisphere where the leaders of every nation have joined in our fight; all, that is, except one, because the Castro regime does not support the war on terrorism. President Bush asked the leaders of the civilized world to declare themselves with us or against us, but the Castro regime has made it very clear that they oppose the war on terrorism. According to Secretary of State Colin Powell and Secretary of the Treasury Paul O'Neill, in an extraordinary joint letter to Congress: ``The Cuban government has refused to cooperate with the global coalition's efforts to combat terrorism, refusing to provide information about al Qaeda.'' ``On June 8, 2002,'' and I am still quoting from this letter from the Secretary of State and the Secretary of the Treasury, in an extraordinary joint letter to Congress, ``On June 8, 2002, Castro compared the U.S. campaign against terrorism with Hitler's Third Reich. Castro said, 'What is the difference between America's antiterrorism philosophy and those of the Nazis?'" It does not end there. Cuba is working with the government of Iran and Ayatollah Ali Khamenei to undermine America. In a meeting with Khamenei last year, Castro said that in cooperation with each other, Iran and Cuba can destroy America. He added that, ``The United States regime is very weak and we are witnessing this weakness from close up.'' Senior State Department officials have discussed publicly the threat of Cuba's bioterrorism program. As we rush to protect our citizens from small pox and anthrax, Castro is diverting the resources of his desperately poor economy to offensive biological warfare research and development. And he is selling bio- technology to other rogue states. Even more than with al Qaeda terrorists based in Afghanistan, Pakistan, or Somalia, Cuba's geographic proximity to the United States offers Castro's agents opportunities to gain access to U.S. territory and to our critical infrastructure. In this connection, the current regulations on U.S.-Cuba travel are a crucial tool for law enforcement to prevent the use of bio-weapons against the American people. Today we will vote on legislation to lift aspects of the embargo on Cuba. The Goss amendment will only take effect if this Chamber votes to do so. It requires a Presidential precertification to Congress before such a new law would take effect of three things: first, that Cuba does not possess and is not developing biological weapons that threaten the homeland security of the United States; second, that Cuba is not providing to terrorist states or terrorist organizations technology that could be used to produce, develop or deliver biological weapons; and, third, that Cuba is not providing support or sanctuary to international terrorists. These are exceedingly reasonable and vitally important questions to have answered. And if President Bush cannot give Cuba a clean bill of health on these three questions, then, lifting any aspect of the embargo must be dependent upon Castro's beginning to change these practices. The embargo and the promise of lifting it provides the necessary leverage for the President to achieve our antiterror objectives. If Congress were to give the Castro regime the trade and tourism dollars they now seek without any reform in exchange, we would simultaneously undermine U.S. policy and subsidize our hemisphere's most notorious state sponsor of terrorism. Castro, for his part, would use any easing of the embargo to redouble his efforts to undermine America and to tighten his grip over the Cuban people, but we must not give him that chance. As we continue to wage the war on terrorism, now is the time to fully support President Bush by giving him the tools he needs to win. I urge my colleagues to vote ``aye'' on the Goss amendment.

Mr. COX. Mr. Chairman, I move to strike the last word, and I rise in strong support of the Goss amendment.

Mr. COX

Mr. COX. Mr. Speaker, that is certainly correct.

Mr. COX. That is correct.

Mr. COX. Mr. Speaker, I am certainly familiar with those provisions, and that is accurate as well. The gentleman might also point out that not only were the provisions of H.R. 5113 adopted almost unanimously by this House just a few days ago, not only are those provisions much tougher than existing law, but they are significantly tougher than comparable provisions in the Senate legislation.

Mr. COX. Mr. Speaker, will the gentleman yield?

Mr. COX. Mr. Speaker, I have read carefully the very brief motion to instruct conferees and the underlying provisions of the Senate-passed bill that the House would recede were we to adopt this. I am surprised that the motion to instruct focuses on the criminal provisions of the House and the Senate bills respectively because it is well known that the House-passed bill that we adopted here earlier this week by a vote of 391 to 28 is much tougher than the Senate bill. The specific provision concerning shredding of documents that this motion to instruct would have us adopt, we would recede to the Senate position, drop any disagreement with the Senate position, would have us adopting a 10-year maximum sentence for shredding documents. But just a few days ago by a vote of 391 to 28, virtually every Member sitting on the floor right now voted for a maximum sentence of 20 years. I cannot understand why, if we want to be tough on corporate fraud, if we want to be tough on corporate wrong-doers, we would focus on this portion of the disagreement between the House and Senate bill and substitute the far-weaker provisions of the Senate bill. The Senate bill provisions that we are asked to accept in this motion to instruct also include obstruction of justice penalties. The maximum penalty for obstruction of justice in the House-passed bill earlier this week is 20 years, significantly lengthening the provisions under existing law. What the Senate bill does on this point is ask the United States Sentencing Commission to review the sentencing guidelines and do what they think is necessary to deter offenders. Adopting the far weaker provisions of the Senate bill in this respect, where we know that the criminal provisions enacted by this House are much tougher, makes no sense at all; and I regretfully must oppose this motion to instruct conferees.

Mr. COX. Mr. Speaker, I want to commend my colleagues on both sides of the aisle for the work that we have done in this House over the last several weeks to move to the position that we find ourselves in today, going to conference with the Senate on this very important legislation. The President is urging us to act quickly, and we intend to do so. It is our intention on the majority side, and I think it is the intention also on the minority side, to get a bill as soon as possible, certainly by the end of the next week when we adjourn for our August recess. To that end, in the House of Representatives we have enacted not one, but two bills addressed to this subject; indeed, three bills, because we have included pension reform as well. Several months ago we responded to the President's call for 10 major reforms addressed to corporate wrongdoing. We waited quite a long time for a response from the other body, but now we have it and we are moving quickly. It should be the position of this House when we go to conference to back the toughest criminal penalties that we can impose as a Nation on those who would undermine our markets, on those who would steal from investors. That is what this House voted to do just a few days ago. H.R. 5118, produced by the Committee on the Judiciary, which ought to, in our standing committee structure, write criminal laws, that bill passed 391 to 28; and it should be the position of this House. We all voted for it. I am very puzzled that we would now have a motion to instruct that says, abandon the House position articulated by all of us here on the floor, produced in a quality fashion by the ranking member on the Committee on the Judiciary, who is here with us on the floor today, and by the gentleman from Wisconsin (Chairman Sensenbrenner); abandon those positions, those tough positions, and instead insert essentially identical positions in the House bill that differ only in that they have half the penalty that we approved here earlier this week. There is not much to this motion to instruct. It says that ``the House should recede from disagreement with section 802, section 804, section 805, and section 806 of the Senate bill.'' Section 802 of the Senate bill concerns criminal penalties for shredding documents, and the penalty is very clearly stated in section 802 of the Senate bill. It is 10 years. The provision in our House- passed bill, a bill that I think the ranking member on the Committee on the Judiciary takes pride in, that I take pride in, I voted for it, I supported it here on the floor, that identical provision in the House- passed bill is 20 years. That should be our position in conference. The same with obstruction of justice. The same with all of the things covered in this motion to instruct, which are addressed essentially to the criminal features only of this otherwise broad legislation. I strongly oppose, therefore, this motion to instruct and urge my colleagues to do likewise.

Mr. COX. Mr. Speaker, will the gentleman yield?

Mr. COX. Mr. Speaker, if the gentleman will continue to yield, the dilution is moving from the House position of 20 years maximum sentence for shredding of documents and for obstruction of justice to 10 years.

Mr. COX. Mr. Speaker, as a conferee, I certainly would urge, and I believe it is the general intent of all of the conferees in the House to urge, as the House position in this conference when it comes to criminal changes, criminal law changes, to urge the House-passed bill be included in the conference report. Were we to adopt this motion to instruct, we would undermine that position of the House. We would be required to take the much weaker Senate provisions.

Mr. COX. Well, certainly the scope of this legislation on both the House and the Senate side gives ample opportunity to do other things, to reinforce these criminal law provisions; but the motion to instruct that is before us is addressed only to the criminal law provision.

Mr. COX

Mr. COX. Mr. Speaker, I rise this evening to bring to the attention of the House the decision of the Ninth Circuit Court of Appeals in the case of Michael A. Newdow v. United States Congress. This case, Mr. Speaker, even though it was decided by the Ninth Circuit Court of Appeals only a few hours ago, has already attracted considerable national attention. Indeed, it has drawn the comment of the President of the United States. The reason is rather simple. It is a decision involving something that is well known to all of us in this Chamber, the Pledge of Allegiance. The Ninth Circuit Court of Appeals has ruled that the Pledge of Allegiance, written into statute a half century ago, is unconstitutional. Of course this Chamber is opened each day with a recitation of the Pledge of Allegiance. Public schools across the country begin their day this way. Some Members and some students may, if they choose, listen or absent themselves, indeed, because there is no requirement of Members of Congress as we open our day this way or of students that they recite the Pledge. It is a voluntary act. Nonetheless, a parent, Michael A. Newdow, of a student in a California public school, brought a lawsuit, one of several that he has brought, urging an injunction against the President of the United States and an injunction against this Congress. In the latter case, he wished us to be ordered by court immediately to rewrite the statute, the statute he wished that we would rewrite so that the words ``under God'' would be deleted from the Pledge of Allegiance. I think because the Pledge is so familiar to us, particularly the Pledge has been recited by so many so often in so many public ways, whether it be at sporting events or public gatherings since September 11, that it comes as something of an unexpected surprise that a court would rule this way. I will devote a brief portion of my brief remarks this evening to the substance of the question and, that is, whether or not Congress, which was a defendant in this case, was within its rights to write the law as we did a half century ago; but I would spend most of my time drawing attention to what I consider to be the sloppy jurisprudence in this case. What is really at issue in what shall become a very well known decision of Newdow v. U.S. Congress is the rule of law. Precious little respect was paid to precedent in this case, because many of the questions, procedural questions indeed, not just the substance here, many of the questions have already been decided. But this court chose to decide the same questions differently, and that lack of respect for precedent raises questions about the rule of law in America, about the predictability of the law, about the ability of any of us to know in advance what are the rules to which we must conform our conduct. Let me begin by just describing a little bit about the case, a little bit about the facts of the case. Newdow, the fellow who brought the lawsuit, is an atheist whose daughter attends public elementary school in the Elk Grove Unified School District in my State of California. In the public school that she attends, like many public schools, they start the day with the Pledge of Allegiance. But Newdow, according to the Ninth Circuit, does not allege that his daughter's teacher or school district requires his daughter to participate in reciting the Pledge. Rather, he claims that his daughter is injured when she is compelled to watch and listen. That is what this lawsuit is all about, according to the Ninth Circuit. The gravamen of the complaint is there is injury, that is the word that is used, and it is an important word, as I shall return to in just a moment. There is injury when someone is required to be in the presence of others who are reciting something in which they believe. The United States Supreme Court was asked to decide this question, this very question, in another case, Valley Forge Christian College v. Americans United for Separation of Church and State, Incorporated, 1982. Here is what the Court said in the Valley Forge case: ``The psychological consequence presumably produced by observation of conduct with which one disagrees is not an injury sufficient to confer standing under article 3, even though the disagreement is phrased in constitutional terms.'' Let me describe a little bit about what the Court was saying here. The Court said there was no standing under article 3. That is lawyer language which means there was no case. The very jurisdiction of a Federal court requires as a condition for proceeding to hear the facts and apply the law that there be an injury in fact, somebody be injured by the thing about which they are complaining. And so that was a threshold question that the Court had to decide here: Was this man, Mr. Newdow, sufficiently injured personally by what was going on in this case, particularly by the act of Congress, which is what he was suing about? And the Supreme Court said ``no'' in the case of Valley Forge. They could not have said ``no'' in plainer terms, because he pleaded in his action that his daughter's teacher and the school district did not require his daughter to participate in reading the Pledge of Allegiance. That was his allegation about this case. Rather, he claims that his daughter is injured when she is compelled to watch and listen. So now let us go back to that language of the Supreme Court. The Supreme Court said, ``The psychological consequence presumably produced by observation of conduct with which one disagrees is not an injury sufficient to confer standing under article 3, even though the disagreement is phrased in constitutional terms.'' The Ninth Circuit Court of Appeals was aware of this binding U.S. Supreme Court precedent. And what did they say to deal with that fact? They said, ``Valley Forge remains good law.'' They acknowledge that case has not been overturned. It has not been reversed. It is still there. But what they chose to do is to say essentially that the law is progressing here, we want to take it the next step, because they view the law as an organism, something that is ever evolving and changing and developing. Leave aside whether they are right or wrong in the application of that principle, if one chooses to call it that, in this case. What does it mean if the law is the plastic, malleable instrument of judges? It means that none of us as citizens knows in advance how the case is going to be decided, how it is going to turn out. Everyone here, in addition perhaps to having said the Pledge of Allegiance in school when they were schoolchildren, probably learned about Hammurabi. Hammurabi is well known for erecting in the town square stone tablets bearing the written law. For the first time, the law was written down. Why was that important? Why was written law important? It was important because, for the first time, the subjects of Hammurabi, the citizens, knew in advance the standard to which they should conform their conduct. And at that moment the law stopped being arbitrary. We have heard it said that we are a government of laws, not men. Yet what does it mean when it is essentially a lottery? We roll the dice. We do not know how these cases are going to turn out in advance because it is up to the judges and their personal view. One of the contests in constitutional law, in constitutional interpretation, is between those who believe in what is sometimes referred to as original intent, those who believe that what the people who wrote it matters in interpreting the words, versus those who believe in the Constitution as a living document, that the way we choose to interpret those words in our time and place ought to govern. It is of some great consequence how one answers that question, because the Founders lived some time ago; and whether or not one agrees with them or disagrees with them subsequently, in subsequent ages, at least what was settled at the time becomes an objective standard. And the Founders left us with an article in the Constitution, article 5, that permits us in our time and place to amend the document if we decide that it is too much of a tight collar for us and we cannot live within those strictures in our place and time. So is there anything about the first amendment which is at issue here in the time of its drafting and what was on the mind of the Founders that can help us understand whether they thought that references to God in public places, not references to a particular establishment of religion, were violative of the Constitution? Let us turn to the first amendment. With respect to religion, it is very concise. It says, ``Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.'' So the question is, should this clause be interpreted as barring the government from giving preferment to a particular religion? That is one interpretation. Or should it be interpreted as requiring the complete and total elimination of any reference to God in our public institutions? That is a different interpretation. The Supreme Court considered this very question in an earlier case involving the Pledge of Allegiance. They considered it in a different way, however. Remember that the language that we are talking about, ``under God,'' was added a half century ago. A few years before that language was added, the Supreme Court first considered the Pledge without those words, and it decided that students cannot be required to recite it. Students cannot be required to salute the flag, either. ``The action of the local authorities in compelling the flag salute and Pledge transcends constitutional limits on their power.'' That is what the Supreme Court said in West Virginia State Board of Education against Barnette in 1943. Compelling someone to recite or to do something against their will that affects or represents their beliefs is not within the power of our government. Indeed, it was pointed out in that connection and in other connections that that is what the Pledge of Allegiance is about. If there is liberty for all, that means we have to be free in our minds as well as in our physical actions, and so we cannot be compelled to say we believe something that we do not believe. A very important case. But they went on. They said that it was unconstitutional because it invades the sphere of intellect and spirit which it is the purpose of the first amendment to our Constitution to reserve from all official control. It was the compulsory aspect of what was going on in that case that bothered the Court. The Court noted that the school district was compelling the students to declare a belief and requiring the individual to communicate by word and sign. Remember, the Pledge was accompanied by a flag salute or a hand over the heart. ``The compulsory flag salute and Pledge requires affirmation of a belief and an attitude of mind,'' those further words from the Court's decision in the Barnette case. The Court also said, ``If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox, in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.'' Note what was going on in the Barnette case. Listen to this list of things that the government cannot force us to believe in: politics, nationalism, religion, or other matters of opinion. They were dealing with the Pledge of Allegiance even before it had the words ``under God,'' and they said that the government cannot force you to say it. The government cannot force you to believe in a particular religion; the government cannot force you to believe in particular politics either. So, fast forward to today when we are watching as a court throws out the words ``under God'' from the Pledge of Allegiance and ask yourselves why the rest of it can remain. If there is some element of compulsion, even though you are not required to recite the Pledge, just in being forced to witness others say it, then is it there to precisely the same degree, that kind of compulsion, to the rest of the Pledge, even if we were to excise the words ``under God,'' and does not the Barnette case say that there can be no such compulsion? In this Newdow case, that is the name of the Ninth Circuit decision handed down today, the court said, ``The Pledge, as currently codified, is an impermissible government endorsement of religion,'' and it is so common in court opinions these days to cite authority. It is the reason we can call the cases decided by courts case law. It is not supposed to be the mental invention of the judges; it is supposed to be an application of well-known principles of law to the facts at hand. So having said, ``The Pledge, as currently codified, is an impermissible government endorsement of religion,'' the court cited some authority. What did they cite for authority? They cited Justice O'Connor's words in another case, and they cited Justice Kennedy's words in another case. Here is how they interpreted Justice Kennedy's words: Justice Kennedy agreed with us. That is what they are saying. Justice Kennedy agreed with us that ``The Pledge, as currently codified, is an impermissible government endorsement of religion,'' but Justice Kennedy does not agree with that. There is plenty of case law making it very clear that the language that they are quoting from Justice Kennedy was written for the opposite purpose. Here is what Justice Kennedy said in his dissent, in his dissent in a case called Allegheny County v. Greater Pittsburgh ACLU. Now that case, by the way, involved holiday displays in the downtown area in Pittsburgh. On some public property they were displaying a menorah and they were displaying a nativity scene; and the ACLU, the American Civil Liberties Union, sued, and by a 5 to 4 majority, the Court said that could not go on because a menorah signified a particular religion, Judaism, and the nativity scene signified a particular set of religions, Christianity. So there were particular sects being promoted by the government, not just sort of general references to God and, for that reason, it was unconstitutional. Justice Kennedy dissented from that case, and he would have allowed it. He was among the four members who would have allowed it; and yet he is being cited for authority in this case striking down the words ``under God'' in the Pledge of Allegiance. Why would they do that? Here is what Justice Kennedy is quoted as having said, quoted by the Ninth Circuit in their decision today as having said: ``By statute, the Pledge of Allegiance to the flag describes the United States as `one Nation under God.' To be sure, no one is obligated to recite this phrase, but it borders on sophistry to suggest that the reasonable atheist would not feel less than a full member of the political community every time his fellow Americans recited, as part of their expression of patriotism and love for country, a phrase he believed to be false.'' That is what they quote him as saying. And they say, therefore, he agrees with our decision that ``The Pledge, as currently codified, is an impermissible government endorsement of religion.'' But Justice Kennedy went on to say, in the immediately-following sentence, which the Ninth Circuit fails to quote, ``Likewise, our national motto, `In God We Trust,' which is prominently engraved in the wall above the Speaker's dais in the Chamber of the House of Representatives,'' and Mr. Speaker, I would observe that you are sitting under the very model that Justice Kennedy is referring to in this decision, it says right over your chair, ``In God We Trust.'' He says it is ``prominently engraved in the wall above the Speaker's dais in the Chamber of the House of Representatives and is reproduced in every coin minted and every dollar printed by the Federal Government.'' He is saying that these things must have the same effect if the intent of the establishment clause is to protect individuals from mere feelings of exclusion; and it is his opinion that that is not what the establishment clause does. That is what Justice Kennedy was saying. So it stands Justice Kennedy on his head to cite him as authority for the proposition in Newdow that the Pledge, as currently codified, is an impermissible government endorsement of religion. So I find it interesting that in this tradition of judges citing authority for their rulings, that we have cited the language of Justice Kennedy as well as the language of Justice O'Connor. But Justice O'Connor, likewise, does not support this proposition. In this case of Allegheny County v. the Greater Pittsburgh ACLU, the majority opinion was written by Justice Blackmun. Justice Blackmun discussed, before he got to his result, a case called Marsh against Chambers in which legislative prayers were challenged. Now, Mr. Speaker, my colleagues may be in memory of what happened at the beginning of the day today and what happens at the beginning of every one of our sessions every day. We begin with our Chaplain saying a prayer here in the House Chamber, standing, more to the point, under the motto, ``In God We Trust.'' There was a lawsuit challenging legislative prayers; State legislatures do this as well. It went to the U.S. Supreme Court and the case that decided the question is called Marsh against Chambers. Now, we can guess what the result was in that case, because our prayers are still going on. Justice Kennedy, in the case of Allegheny County against the Greater Pittsburgh ACLU, the one that they decided about the nativity scene and the menorah, Justice Kennedy dissented in that case and he cited this Marsh case. And Justice Blackmun did not like his use of the Marsh case, did not like the reference that he made. So here is what Blackmun said about Marsh and about Justice Kennedy. He said, Justice Kennedy argues that such practices as our national motto, ``In God We Trust'' and our Pledge of Allegiance with the phrase ``under God'' added in 1954 are in danger of invalidity if we were to say it is unconstitutional to have a nativity scene or it is unconstitutional to have a holiday menorah. Justice Blackmun said, that is silly. That is not what we mean. That is not what we are saying. Here is a quote from Justice Blackmun: ``Our previous opinions have considered indicative the motto and the Pledge characterizing them as consistent with the proposition that government may not communicate an endorsement of religious belief.'' And he cites for that proposition the words of two justices in other cases, Justice O'Connor and Justice Brennan. Now, Justice O'Connor is the other Justice that the Ninth Circuit was relying upon to reach today's result. So we now have on the record both Justice Kennedy and Justice O'Connor for the opposite proposition, and that is that the Pledge and our motto, ``In God We Trust,'' do not raise these establishment clause questions. That is certainly how I read those opinions, Mr. Speaker. Justice Blackmun goes on to say, we need not return to the subject, because there is an obvious distinction between creche displays, creche meaning the nativity scene, there is an obvious distinction between creche displays and references to God in the motto and in the Pledge. So we have Justice Kennedy raising the specter of: boy, if we go this way and throw out a nativity scene, pretty soon it is going to be the motto and the Pledge, and then Justice Blackmun saying, nonsense. We have already considered those questions, and there is no need to consider them here further. Justice Blackmun goes on to say: ``However history may affect the constitutionality of nonsectarian references to religion by the government, history cannot legitimate practices that demonstrate the government's allegiance to a particular sect or creed.'' Why is that so important? Let us go back to the language of the first amendment. It is very short: ``Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.'' Well, the free exercise clause obviously would tend in the opposite direction of this case: ``Government shall make no law prohibiting the free exercise of religion.'' So one should be free to practice religion in America. That is what the Constitution guarantees. But this other portion, the establishment clause says: ``Congress shall make no law respecting an establishment of religion.'' Now, some people like to do a little bait and switch with the specific article, the definite article. They substitute ``the'' for ``an,'' and ``the'' is specific and ``an'' is general. I do not know if we are all grammarians here this evening, but it matters. ``A baseball game'' is different than ``the baseball game.'' ``Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.'' What if it said instead: Congress shall make no law respecting the establishment of religion? Would that matter? Mr. Speaker, I think it would matter a great deal, because if it is religion that we are concerned about rather than an establishment of religion, an instance, one of many, then I think we have given some ammunition to those who say the real purpose of this clause in the first amendment is to say, no religion can be discussed. But if what the Constitution is enjoining us to do is not to make any law respecting particular religions, particular kinds of religions, then it is something else entirely different. Mr. Speaker, I do not know that we can this evening, to everyone's satisfaction, resolve this basic question of whether the establishment clause in the first amendment should be better interpreted as barring the government from giving preferment to a particular religion, on the one hand, or rather as requiring the complete and total elimination of any reference to God in our public institutions on the other hand. But I think it is awfully clear that that is what is at stake here, because the court, the Ninth Circuit Court is troubled by the fact that there is the most conceivably abstract reference possible to God, not to even religion or to a specific religion, but simply to God. I am put in mind, and this will escape almost all of my hearers, of a National Lampoon parity of ``Desiderata'' called ``Deteriorata.'' This was popular in the 1970s. And they sort of made fun of the well-known, at the time at least, ``Desiderata,'' and in ``Deteriorata'' they said, ``Therefore, make peace with your God, whatever you conceive him to be, Harry Thunderer or Cosmic Muffin.'' A little bit of humor that illustrates the point that one person's God is not another person's God is not another person's God. In fact, what God is, in the minds of physicists, it could be the entire universe as we know it. For animists, it could be the plants or the animals. God is as general and as high on the ladder of abstraction as one can be, and it is very different, this reference to God, than a particular religion. That is important, Mr. Speaker, because I think the court betrays its fundamental error in logic when it says, and I will find the precise language here, but it says essentially that for constitutional purposes there is no distinction between the words ``under God'' in the Pledge and ``under Jesus'' or ``under Vishnu'' or ``under Zeus.'' That is what the opinion says. And I think there is a world of difference. There is a world of difference, because one is as respectful as possible of the right that is guaranteed in the rest of the first amendment, the free exercise of one's particular religion. It does not give a preferment to any religion, which is what the establishment clause at a minimum is meant to guard against. Mr. Speaker, here is precisely what the Ninth Circuit Court of Appeals said on this point: ``A profession that we are a nation under God is identical for establishment clause purposes to a profession that we are a nation under Jesus, a nation under Vishnu, a nation under Zeus, or a nation under no God, because none of these professions can be neutral with respect to religion.'' Of course, here is the rabbit in a hat. It is interchangeable for the Ninth Circuit in this opinion that we might be dealing with religion as a general noun, a class of things, the dictionary definition of religion, which could be almost anything, on the one hand; or a religion, a specific religion. And again, that gets us back to the fundamental question of what the first amendment means. Does it mean that government shall make no law respecting an establishment of religion; or, in fact, forget the business about the definite article, but just religion? Maybe ``establishment'' should be read out of the first amendment: ``And government shall make no law respecting a religion.'' That would certainly be directly to the point made by the Ninth Circuit today. It is worth drawing attention to what the Ninth Circuit believes here because not all the judges were in agreement. There was a two-person majority and a one-person dissent. And in a three-judge panel, of course, that is all it takes, is two judges. Judge Fernandez, circuit judge in the Ninth Circuit Court of Appeals, said this: ``We are asked to hold that inclusion of the phrase `under God' in this Nation's Pledge of Allegiance violates the religion clause of the Constitution of the United States. We should do no such thing. We should, instead, recognize that those clauses were not designed to drive religious expression out of public thought; they were written to avoid discrimination. ``We can run through the litany of tests and concepts which have floated to the surface from time to time. Were we to do so, the one that appeals most to me, the one I think to be correct, is the concept that what the religion clauses of the First Amendment require is neutrality; that those clauses are, in effect, an early kind of equal protection provision and assure that government will neither discriminate for nor discriminate against a religion or religions . . . when all is said and done, the danger that `under God' in our Pledge of Allegiance will tend to bring about a theocracy or suppress somebody's beliefs is so minuscule as to be de minimis. The danger that that phrase presents to our First Amendment freedoms is picayune at most. ``Judges, including Supreme Court Justices, have recognized the lack of danger in that and similar expressions for decades, if not for centuries, as have presidents and members of our Congress.'' At this point, Judge Fernandez cites four preceding Supreme Court opinions and goes into some great detail with his authority. He refers to the case of the County of Allegheny, to which I made reference earlier, in which the majority said, ``Our previous opinions have considered in dicta the motto and the pledge, characterizing them as consistent with the proposition that government may not communicate an endorsement of religious belief.'' Now, the Seventh Circuit Court of Appeals decided a case very similar to this one, and the Seventh Circuit is, of course, a different jurisdiction of equal dignity with the Ninth Circuit Court of Appeals. And because there was no identical case previously decided by any precedent in the Ninth Circuit, the panel in this case was required to at least acknowledge it, and they did. They said the only other court to consider this was the Seventh Circuit, and even though the Seventh Circuit decided it consistently with the Supreme Court dicta, we are going to go the other way. So they acknowledged they are blazing a new trail out there in the Ninth Circuit. Again, whatever one feels about the decision, this takes us back to the question of the rule of law and predictability. When precedent does not matter, when we are always trying to move that ratchet one more notch, we are always trying to take the law in new directions and expand it and make sure it is a living organism and reflective of what is new and modern, there is not any predictability, and it becomes the rule of men and not law. Judge Fernandez went on to say, ``such phrases as In God We Trust'' or ``under God'' have no tendency to establish a religion in this country or suppress anyone's exercise or non-exercise of religion, except in the fevered eye of persons who most fervently would like to drive all tincture of religion out of the public life of our polity. Those expressions have not caused any real harm of that sort over the years since 1791 and are not likely to do so in the future. As I see it, that is not because they are drained of meaning. Rather, as I have already indicated, it is because their tendency to establish religion (or affect its exercise) is exiguous. I recognize that some people may not feel good about hearing the phrases recited in their presence, but, then, others might not feel good if they are omitted. At any rate, the Constitution is a practical and balanced charter for the just governance of a free people in a vast territory. Thus, although we do feel good when we contemplate the effects of its inspiring phrasing and majestic promises, it is not primarily a feel-good prescription. ``In West Virginia Board of Education v. Barnette, for instance,'' and remember, the Barnett case which I discussed earlier is the one involving the Pledge of Allegiance and the flag salute, in which the court held that it is not constitutional to force people to do these things, to say these things, to recite the Pledge. If people do not believe that America is a country that stands for liberty and justice for all, then they do not have to recite the Pledge. That is what the court said there. ``In West Virginia Board of Education v. Barnett . . . '' Judge Fernandez says, ``the Supreme Court did not say that the Pledge could not be recited in the presence of Jehovah's Witness children; it merely said they did not have to recite it. That fully protected their constitutional rights by precluding the government from trenching upon `the sphere of intellect and spirit.' As the court pointed out, their religiously based refusal `to participate in the ceremony [would] not interfere with or deny the rights of others to do so. . . . We should not permit Newdow's feel- good concept to change that balance.'' So this is a different judge of the Ninth Circuit giving us a very different point of view from the minority, and citing, I think rather more correctly, the holding in Barnette. ``My reading of the stelliscript suggests that upon Newdow's theory of our Constitution,'' and Newdow, remember, is the plaintiff in this case, the father whose daughter goes to school and has to watch as others recite the Pledge of Allegiance, ``My reading of the stelliscript suggests that upon Newdow's theory of our Constitution, accepted by my colleagues today, we will soon find ourselves prohibited from using our album of patriotic songs in many public settings. `God bless America' and `America the Beautiful' will be gone for sure, and while use of the first and second stanzas of the Star-Spangled Banner will still be permissible, we will be precluded from straying into the third. And currency beware! Judges can accept those results if they limit themselves to elements and tests, while failing to look at the good sense and principles that animated those tests in the first place.'' So judge Fernandez is now giving us a view of where we might be headed if this decision holds and becomes law, the decision from which he dissented. He says, ``What about God Bless America in a public setting?'' What about it? What if it is the Marine Corps band? What if it is on the steps of the Capitol? Is that it? Is it all over for God bless America on the Capitol steps, or performed anywhere by our people, our men and women in uniform? Perhaps that is the sort of thing designed to scare people away from the results in the case at hand, which is not about God Bless America. But remember the decision in Allegheny, in which we had Justice Kennedy in his opinion dialogue with Justice Blackmon in the majority saying, Mr. Justice, if you go this way, if you say no creche, no menorah, then I think you are going to have to take a look at the Pledge of Allegiance and our motto in God We Trust, and you had the majority in that case say, Oh, pshaw, that is not what we mean. Do not worry about the Pledge or the motto, and here we are today, just as Justice Kennedy predicted, worrying about the Pledge. So perhaps we ought not to dismiss out of hand what Judge Fernandez is telling us: All right, if we do what the Ninth Circuit wishes us to in the Newdow case today, then we had better be prepared to get rid of God Bless America, we had better be prepared to get rid of that motto In God We Trust, right over the Speaker pro tempore's head, and we had better be prepared to get it off of our currency, because the same principle must apply. That is what Judge Fernandez says. So he says, ``Judges can accept those results,'' these extensions of the principle in Newdow, ``if they limit themselves to elements and tests, while failing to look at good sense and principles that animated those tests in the first place. But they do so'', judges would be doing so, ``at the price of removing a vestige of the awe we all must feel at the immenseness of the universe and our own small place within it, as well as the wonder we must feel at the good fortune of our country. That will cool the febrile nerves of a few at the cost of removing the healthy glow conferred upon many citizens when the forbidden verses or phrases are uttered, read, or seen. ``In short,'' he concludes, ``I cannot accept the eliding of the simple phrase ``under God'' from our Pledge of Allegiance, when it is obvious that its tendency to establish religion in this country or to interfere with the free exercise (or non-exercise) of religion is de minimis.'' And he drops a footnote at this point, because there are going to be constitutional scholars who are going to say, wait a moment, are you saying there is such a thing as a constitutional violation that is so small we will just ignore it? And he is saying, that is not what I mean at all. ``Lest I be misunderstood, I must emphasize that to decide this case it is not necessary to say, and I do not say, that there is such a thing as a de minimis constitutional violation. What I do say is that the de minimis tendency of the Pledge to establish a religion or to interfere with its free exercise is no constitutional violation at all.'' Mr. Speaker, I am sure that almost everyone in the country will end up having an opinion about this case, but I think it is very important that everyone in the country, as we enter into this debate, not assume that they know everything about it. They ought to take the time, as we have here this evening, to examine the facts. We were, of course, defendants in this case. We have a real stake in it. But it matters, for example, that the plaintiff in this case specifically pleaded or specifically alleged that she, or was her father pleading that his daughter was not required to recite the Pledge of Allegiance. So this is not a case about someone being required to say the Pledge, which happens to include the words ``under God.'' That is an important fact to bear in mind. It may not affect Members' opinions one way or another in the end, but for some people the notion that someone might be coerced is very material, and those people should note that the Supreme Court dealt with that question 60 years ago. That is not an open question. We cannot be forced to say the Pledge in this country. I pulled up the legislative history because what the court did today is throw out an act of this Congress. I thought it was instructive in reading the court's opinion that they said that the reason that Congress did what it did was very important. Let us take a look at Congress' motive, they said. What was the purpose in enacting the statute? That might tell us whether what Congress was really trying to do this on the sly by inserting those words was to promote religion in violation of the First Amendment. They said, and I ought to be sure to quote the opinion directly to make sure that I do not mischaracterize it, but they said, in essence, that the legislative history in their mind was clear evidence of an unconstitutional purpose. Then they quoted a very, very small part of it. The problem, they say, is that when the Congress did this in 1954, and Mr. Speaker, I will have it here in just a moment, that the purpose of the Congress was not establishing a religion. That is the language that they quote. It rather befuddles one to understand why, therefore, they infer that was the purpose. Here is the legislative history that they quote: ``The sponsors of the 1954 act expressly disclaimed a religious purpose.'' So in those days, in 1954, when political correctness was not at large, they still did not get tripped up by the test that we are applying now in 2002. They said: ``This is not an act establishing a religion.'' The act's affirmation of ``a belief in the sovereignty of God and its recognition of `the guidance of God' are endorsements by the government of religious beliefs,'' the court says. But the legislature, this Congress at the time that we passed the law, said that there was no such purpose. The establishment clause they say is not limited to religion as an institution. And so they are again retreating to this abstract notion of all religion being the problem, not just an establishment, even though that is the plain word of the first amendment. Here is what the legislative history says, Mr. Speaker. I have taken it from our official documents in May 1954. They say: ``By the addition of the phrase `under God' to the Pledge the consciousness of the American people will be more alerted to the true meaning of our country and its form of government.'' That was their purpose. ``The consciousness of the American people will be more alerted to the true meaning of our country and its form of government.'' That, Mr. Speaker, is a secular purpose. In this full awareness we will, I believe, be strengthened for the conflict now facing us and more determined to preserve our precious heritage. ``Fortify our youth in their allegiance to the flag by their dedication to one nation under God.'' So the purpose is to fortify our youth in their allegiance to the flag. Is that not a secular purpose? So it is a legislative history as important as the Ninth Circuit says it is, I think it pays to read it. They went on to say, ``It should be pointed out that the adoption of this legislation in no way runs contrary to the provisions of the first amendment to the Constitution. It is not an act establishing religion or one interfering with the free exercise of religion.'' So what they did in Congress at the time was look to what they thought was the law, the decisions of the Supreme Court interpreting the first amendment. ``The Supreme Court has clearly indicated that the references to the Almighty which run through our laws, our public rituals, and our ceremonies in no way flout the provisions of the first amendment.'' Then they cite the Supreme Court authority of the day. So what has happened is between then and now, perhaps, the Constitution has changed. The language of the first amendment has not changed. It is the very same language. The Congress did the best it could at the time. They relied on the Supreme Court, which clearly indicated that ``the references to the Almighty which run through our laws, our public rituals, and our ceremonies in no way flout the provisions of the first amendment.'' They went on to say in 1954: ``In so construing the first amendment, the Court,'' referring to the Supreme Court, ``pointed out that if this recognition of the Almighty was not so, then an atheist,'' the plaintiff in this case, ``could object to the way in which the Court itself opens each of its sessions, namely, `God save the United States and this honorable Court.' '' Well, today, across the street at the United States Supreme Court that is how the Court opens its sessions. They still say as they did in 1954, ``God save the United States and this honorable Court.'' So these questions are all of a piece, the motto, Mr. Speaker, over your head; indeed, the fact that the great law givers of all time ring this Chamber, and that the central one who looks directly at you is Moses, all of these things are of a piece; and it is quite clear the slope that we are on. The legislative history makes it very clear that to the extent that it was possible for human beings to do so in 1954, the drafters and the Members of Congress at the time went out of their way to make sure that they were following the guidance of the United States Supreme Court. What has happened over the last several decades intervening makes it clear that whatever one's view about whether the law should be a living document on the one hand or whether it should be a text that means from age to age, whatever the society or perhaps the Court thinks it ought to mean, that that question looms very, very large. We may not ever know if that is the rule that we follow what the law is and we will have to wait until the oracles tell us. Here in Congress as we seek to write laws consistent with the Constitution, we simply do not have sufficient guidance when all we have is the text of the Constitution and all of the Court's decisions interpreting it, because those can be changed and are very mutable, and precedence are only so good as the paper they are written on. But they can be overturned at will. The fact that the Seventh Circuit has already disagreed with the Ninth Circuit and the Seventh Circuit came first and that that precedent was ignored here; the fact, Mr. Speaker, that the very remedies that the plaintiff were seeking here are all illegitimate remedies and the Ninth Circuit found that that was so, none of that seemed to slow them down. It is worth bringing to the Members' attention that what Newdow was asking for here is that the court should order the President of the United States to alter, modify or repeal the Pledge. So he is drafting the complaint. He has brought a lawsuit, and he wants the court to order the President to alter, modify or repeal the Pledge by removing the words ``under God.'' He asked for one other element of relief. He wanted the court to order the United States Congress immediately to act to remove the words ``under God'' from the Pledge. Well, now, in our juris prudence in America you cannot do that. The courts cannot do that. The President is not an appropriate defendant in an action challenging the constitutionality of a Federal statute. Period. And in light of the speech and debate clause just as much part of the Constitution as is the first amendment, article 1, section 6, clause 1: ``The Federal courts lack jurisdiction to issue orders directing Congress to enact or amend legislation.'' The words that the plaintiff in this case is challenging included the Pledge of Allegiance were enacted into law by statute by this Congress; and therefore, no court may direct this Congress to deleted those words any more than it may order the President to take such action. An injunction against the President is not in order, and an injunction against the Congress is not in order. And that is all that the plaintiff was asking for, so there is nothing left of the case. And yet, even after acknowledging these things, the Ninth Circuit moved on. The Ninth Circuit also just zipped right past the article 3 standing question even though that is jurisdictional, even though you must address standing in order to have a case to decide at all. And they skipped beyond the article 3 holding of the United States Supreme Court that ``the psychological consequence presumably produced by observation of conduct with which one disagrees is not an injury sufficient to confer standing under article 3 even though the disagreement is phrased in constitutional terms.'' That is a holding that the Ninth Circuit Court says is still good law, and they just breeze right past that as well. Now, Mr. Speaker, we may find after an en banc court of the Ninth Circuit takes this case and rewrites it, that these mistakes are corrected. We may find even a different result in the case; but at a minimum I would expect that if the same result is reached, it will be reached in a much more legitimate manner than this. But what are we to think in the meantime? The Ninth Circuit is a big circuit. It governs a lot of States. My whole State of California, 30 million people, Nevada, Arizona, Washington, Oregon, Montana, Alaska, Hawaii. Public school students in all of these States, what are they to do on the anniversary of September 11 next? Do they say the Pledge at all? Do they say it the old way? The new way? What are their teachers to do and what are their parents to do? We do not know because we now find when judges make new law that none of us knows really what the law is. Some of our constituents are already lighting up the phones saying, Congress has got to do something. But the truth is in our system when a court throws out an act of Congress on constitutional grounds there is nothing to be done about it. The Constitution does indeed trump acts of Congress; and the Court, not the Congress is the ultimate arbiter of the constitutionality of statutes. Now, I suppose we could reenact it in precisely the same way, but that would be something of a tedious, if not fatuous, merry-go-round. I do not think that would be serving our constituents well. I think, rather, we can expect with the leadership of the President of the United States and the Attorney General that there will be a petition for rehearing en banc in this case, and that the Ninth Circuit itself will have a chance to reconsider the enormous impact they are having without perhaps giving just that ounce of good judgment that would have made the difference if they had taken into consideration what the Supreme Court has said about this. The only things that the Supreme Court has said about the Pledge, albeit in dicta, are exactly the opposite from the result that was achieved in this case. The only thing that the Supreme Court has said about this question of whether observing something that one does not like being the source of injury, runs exactly the opposite way from the decision in this case. I think if a court normally sets out to avoid constitutional questions and decide cases on other simpler grounds, statutory grounds, procedural grounds and so on, there were ample ways that a court could have handled this Newdow litigation. Newdow was a pro se plaintiff. That means he represented himself without a lawyer although he has had some legal training apparently. He made a lot of mistakes in his pleadings. They were very sloppy. And the court below, even though it was lenient, the district court, the trial court, threw out his case. The Ninth Circuit Court of Appeals came and resuscitated it. They had to put a lot of Band-aids on it because procedurally it was in bad shape. It took a nearly superhuman effort to put this case up on stilts so that we could get the constitutional question for decision. It was to all appearances, Mr. Speaker, something of a reach, and I think our country deserves better. But we shall see. We shall see how this is accepted by the public, what the court itself may do about it. But at a time when so many people are working so hard to pay their taxes, at a time when the courts are as busy as they are, and most middle Americans know if they were to bring a lawsuit it might be 3 to 5 years before they could get a decision because of the backlog and the expense, is it not interesting that the people in San Francisco seem to have sufficient time on their hands so to finely perch this question of angels on the head of a pin, so that they can reach a constitutional question that was not procedurally put to them in a way that required its decision? I think laying out a case in this way, Mr. Speaker, will it better inform the debate? And that while I recognize with 435 Members in the House we might have some diversity of opinion about the case, even here it is bound to occupy the minds of our constituents for some time to come. I appreciate the indulgence of the Chamber in considering it at first blush because the opinion was just issued today, this evening.

Mr. COX

Mr. COX. Mr. Speaker, I thank the gentleman for yielding me this time, and I am very pleased that the committee would bring forth my legislation today to honor both Colonel Aaron Bank, my constituent, and the Special Forces that he played such an indispensable role in founding. Colonel Bank is widely recognized as the founder of America's Special Forces. This weekend, the Special Forces will be celebrating their 50th anniversary. Given this historic anniversary and Colonel Bank's contribution to the way in which America successfully conducts modern warfare, it is appropriate to honor this man to whom we owe so much. Colonel Bank, who is now 99 years old, was an officer during World War II assigned to the Office of Strategic Services, the precursor to the Central Intelligence Agency. He fought in Europe behind enemy lines, and after the war he spent time in Southeast Asia searching for U.S. prisoners of war. Colonel Bank's experience in leading resistance fighters taught him the potential of these new tactics in modern warfare. It showed him the usefulness of military personnel trained in small unit tactics, foreign languages, and subversion. His prescience led him to undertake a new mission: The formation of Special Forces within the Army. They would specialize in small-unit counterinsurgency tactics, intelligence operations, and the training of indigenous soldiers throughout the world. The idea for such small elite units with specialized training was not at first recognized by military thinkers. It was not accepted. The United States had just emerged from a war fought with enormous citizen armies in which large swaths of territory were occupied and held by ground forces. The invasion of Normandy in June 1944 seemed to epitomize this military doctrine: the use of overwhelming force and numbers to drive back, in this case, the German forces. The military successes of World War II and the emerging threat of the massive Red Army in Eastern and Central Europe seemed to provide little reason to question this line of thinking. However, much of the key fighting that secured Normandy for the Allies in fact took place not along the beaches there, but behind German lines, where American and British paratroopers dropped in and operated small units. These men had more specialized training and had operated more as teams than the average GI. Here were the ingredients for a new thinking on military maneuver, and Colonel Bank himself had parachuted behind German lines in occupied France to train German defectors in sabotage and other methods of undermining Nazi control. These experiences convinced him that with the proper training, guerilla forces could effectively fight the enemy from within. They could disrupt communications and could conduct special operations to prepare the area for conventional forces. Colonel Bank then made a career decision. He placed his own prestige and his own reputation behind this idea and fought for it. He lobbied the Pentagon intensively for the creation of such forces, and his advocacy paid off. In June 1952, the U.S. Army Special Forces were created with the establishment of the original 10th Special Forces Group. Appropriately, Colonel Bank was made the first commanding officer of the unit. That unit eventually spawned the Green Berets and provided the impetus for the formation of the Navy SEALs, the Marine Corps' Force Recon, and the Army's counterterrorism specialists, the Delta Force. Over the past half century, Colonel Bank's vision of small-unit operations has proven prophetic. The Special Forces have played a role in almost every major military engagement and, just as importantly, in crucial clandestine missions that have never made the headlines. The Special Forces have trained counterinsurgency operations and conducted diversionary campaigns to distract enemy forces. They have hunted drug kingpins throughout Central America. They have secured pathways for the distribution of humanitarian supplies in the Horn of Africa. Now our Special Forces are engaged in a new challenge: finding and destroying the cells of al-Qaeda. Our Special Forces are figuring prominently in our war on terrorism. They have operated for weeks at a time behind enemy lines, and they have incurred the brunt of U.S. casualties in this new 21st century war. Their successes, though, are a testament to Colonel Bank's vision, his legacy that has revolutionized how America conducts 21st century warfare. It is thus fitting, Mr. Speaker, that we should show our appreciation for the sacrifices that our Special Forces are currently making on the war on terror and in every corner of the world. This measure honors the brave men and women who have served in this capacity over the past 50 years, and especially the man who created these elite units. It is with great pride that I ask this body to pass this legislation to honor Colonel Bank for his achievements.

Mr. COX

Mr. COX. Mr. Speaker, I thank the gentleman from California for yielding me the time. I, too, rise in support of the legislation, H.R. 4794, just considered by the House of Representatives, to designate the Ron Packard post office in Oceanside. I am proud to join with the gentleman from California (Mr. Hunter), the gentleman from California (Mr. Ose), and others in the California delegation for this purpose, because it was my privilege to serve alongside Ron Packard, physically alongside him, here in the Congress, geographically in southern California for 12 years; and it was my privilege in that process to come to know this extraordinary man. When I first came to Congress, I served with Ron on the Committee on Public Works and Transportation where he was, as he now is, an expert on aviation, serving on that as well as other subcommittees in the Congress. He continued to have even greater influence in that area during his service on the Committee on Appropriations where he was a cardinal, a term of reverence, well-deserved in his case, for someone who wields the extraordinary power of the purse in our constitutional system. It is interesting to think, as we completed debate during this Congress on campaign finance reform and all of our expressions of concern about the influences in the political system, about what this means in Ron's case. Ron Packard did not get here because of the help of special interests. He was not even a nominee of a major party. He had to run against the Democratic nominee. He had to run against the Republican nominee. He ran as an individual, as Ron Packard; and in an extraordinary fashion, his constituents wrote in his name in the general election, and he defeated the Republican and Democrat nominee, and that is how he came to Congress here. He was Ron Packard first and became his party's standard bearer only thereafter because the people voted him in. He was the embodiment of a citizen politician. He was everything a Member of Congress should be and everything a national leader should be. I am submitting a much more lengthy tribute for the Record, because I think it is quite possible to go on about Ron Packard without stopping; and I know we have other business to do here. I very much appreciate the time that the gentleman from California yielded to me. Now, it should be said about a Republican who serves on the Committee on Appropriations that there are temptations. The whole term limits movement has a reason in America because of those temptations, because people who serve too long in Washington find it too easy to spend other people's money on pork barrel projects, on wasteful Washington ways. Sometimes they forget about the people back home. It is sad to say that temptation is strongest when one is closest to the money on the committee charged with spending it, the Committee on Appropriations in the House and in the Senate. So how honored are we as American citizens to have been served by a chairman on the Committee on Appropriations who took his trust so seriously that, in discharging it, he actually reduced spending. When Ron Packard first became a chairman on the Committee on Appropriations in 1995, he quickly sent a bill to the floor of the House of Representatives that did not just cut spending for the benefit of taxpayers, it cut spending at home where, presumably, it would hurt Members of Congress themselves most, in our own legislative budget. He cut spending by Congress on itself by fully one-third, an extraordinary achievement when we had a new majority, a new Congress. In fact, throughout his career in the majority as a cardinal, as a chairman on the Committee on Appropriations, Ron garnered awards, not for bringing home the bacon, but from such groups as Americans for Tax Reform, which rated him a taxpayer's hero, and the National Taxpayers Union, which rated him--even as an appropriator and a cardinal--in the top 5 percent of people in this entire Congress interested in cutting spending. This was an extraordinary accomplishment and something that all of his colleagues here are proud of. He made us all proud during his 18 years of service in this body. Everything that he has done in his career, even before he came to Congress, as a local leader, as a mayor, as a member of the city council, as a dentist with his own practice, has distinguished him. It is well said that ours is a government of, by and for the people. The for and by parts are very important. But remember that it is also a government of the people, and that this Congress, which manufactures nothing, is simply the sum of the people who populate it the people who were chosen by the voters to come back here. Therefore, by being who he has been, the fine gentleman that he has been and is, the leader that he has been, the exemplar that he has been for all of us, he has improved this institution, the people's House. The Congress of the United States and thus our country is the better for it. It has been a privilege to know the gentleman, Mr. Packard, and the designation of this post office in Oceanside, CA, is a fitting tribute to his contributions to our democracy.

Mr. COX

Mr. COX. Mr. Speaker, 17 years ago, our colleague from California, Mr. Badham, who represented Newport Beach before I had that honor, rose in this chamber to commemorate the 10th anniversary of an important community event in Orange County, ``Irrelevant Week.'' This event, premised on the ``simple act of doing something nice for someone for no reason,'' takes time out to recognize and honor the last athlete selected in the National Football League's annual draft. Today, 27 years after the people of Orange County first decided to do something nice for someone for no reason, I'm pleased to report that ``Irrelevant Week'' and Orange County altruism are both thriving. Irrelevant Week XXVII is honoring Ahmad Miller, from the University of Nevada at Las Vegas, who was the 261st selection in the 2002 NFL Draft. He is headed to the Houston Texans, where--at six feet three and a half inches tall and 320 pounds--he has the potential to be a presence on the team's defensive line, despite the scores of players selected ahead of him. Such long odds do not dampen the enthusiasm of community leaders like Paul Salata, who organizes this event. That's because they recognize that all fame is fleeting, that humility is a virtue, and that even the last round NFL draft pick is a significantly better athlete than most Members of Congress. During his stellar career at UNLV, Mr. Miller accumulated five quarterback sacks, three forced fumbles, 96 tackles, and 13 tackles for losses. These performances earned the Bradenton, Florida native two selections to the All Mountain West Conference team. Today, the citizens of Newport Beach join me in congratulating Mr. Miller and all of those involved in this celebration, which has now, we can all agree, outgrown its name--for there is little in this world today that is more relevant to our spirit of community and our common humanity than doing nice things for other people. On behalf of the United States Congress and the people of Orange County whom it is my privilege to represent, congratulations to Mr. Miller and everyone associated with Irrelevant Week XXVII, for being more relevant than you care to admit.