Jesse Jackson

Mr. JACKSON of Illinois

Mr. JACKSON of Illinois. Yes, 2 minutes for each side.

Mr. JACKSON of Illinois. Mr. Speaker, I ask unanimous consent that the gentleman from Illinois may have 2 additional minutes for himself and 2 minutes to our side as well.

Mr. JACKSON of Illinois. Mr. Speaker, I am proud to yield 6 minutes to the distinguished gentleman from Illinois (Mr. Weller). (Mr. WELLER asked and was given permission to revise and extend his remarks.)

Mr. JACKSON of Illinois. Mr. Speaker, I yield myself 30 seconds. Clearly, Mr. Speaker, the fact that we are debating this bill on the floor of the Congress sets a dangerous precedent by stating that Congress, not the FAA, not the Department of Transportation, not aviation experts, but Congress shall build and plan airports. That is what we are discussing today. If Congress was not planning to build an airport, we would not be here discussing this bill. Mr. Speaker, I yield such time as he may consume to the gentleman from Illinois (Mr. Hyde), the chairman of the Committee on International Relations. (Mr. HYDE asked and was given permission to revise and extend his remarks.)

Mr. JACKSON of Illinois. Mr. Speaker, is it the gentleman's contention then that a governor who is essentially not running for reelection is under an obligation to enter into an agreement and, therefore, obligate this Congress and future governors to a piece of legislation that future governors cannot alter? Is that the gentleman's position?

Mr. JACKSON of Illinois. Mr. Speaker, I seek the time in true opposition to the bill.

Mr. JACKSON of Illinois. Mr. Speaker, I yield myself such time as I may consume. (Mr. JACKSON of Illinois asked and was given permission to revise and extend his remarks.)

Mr. JACKSON of Illinois. Mr. Speaker, I rise in opposition to H.R. 3479. Votes on the suspension calendar are supposed to be, by definition, noncontroversial. But to argue that H.R. 3479 is noncontroversial is like arguing that the elimination of estate taxes, gun control legislation, a patients' bill of rights, and prescription drug benefits for seniors should all be put on the suspension calendar. H.R. 3479 is the most controversial of bills to come before the House this year. It has been extremely controversial in Chicago, in the northwest suburbs, in Illinois generally, in the Illinois congressional delegation where our two U.S. Senators are divided over it, in all House and Senate committees, in the full Senate, and if a full debate were held here on the House floor today, the Nation would actually see just how controversial this bill is. This bill has already been delayed in the Senate with one virtual filibuster. It will be subjected to every parliamentary and tactical maneuver possible to try to stop it when it comes before the Senate again. Hardly noncontroversial. To tear down and rebuild O'Hare will cost taxpayers three times as much money as it will cost to build a third south suburban airport, 15 to $20 billion, not the $6.6 billion that has been floated about during this debate, versus the 5 to $7 billion to build a third airport. This bill, Mr. Speaker, is highly controversial. Tearing down and rebuilding O'Hare is estimated to take 15 to 20 years, assuming it proceeds on schedule, without lawsuits, which is not likely, while building a new south suburban airport would only take 5 years, it would expand thereafter as need arises and would be a more permanent solution to the capacity crisis. When the new O'Hare is completed, we will be in the same position we are today with regard to the air capacity crisis. How can that possibly not be seen as controversial? This bill will increase environmental pollution. O'Hare already is the number one polluter in Illinois. Hardly noncontroversial. The Chicago Tribune won a Pulitzer Prize for documenting the sleaze surrounding Chicago O'Hare and its vendor and service contracts, hardly an uncontroversial bill for Congress to be considering without full debate. But, Mr. Speaker, most importantly, H.R. 3479 falls woefully short of providing an adequate, equitable solution to a profound problem. Although I oppose this bill for many reasons, I rise today to discuss an important element of this bill, its constitutionality. By the attempt to rebuild and expand O'Hare Airport, Congress is inappropriately violating the 10th amendment. Under the framework of federalism established by the Federal Constitution, Congress is without power to dictate to the States how the States delegate power, or limit the delegation of that power, to their political subdivisions. Unless and until Congress decides that the Federal Government should build airports, airports will continue to be built by States or their delegated agents, State political subdivisions or other agents of State power, as an exercise of State law and State power. Further compliance by the political subdivision of the oversight conditions imposed by the State legislature as a condition of delegating the State law authority to build airports is an essential element of that delegation of State power. If Congress strips away a key element of that State law delegation, it is highly unlikely that the political subdivision, the city of Chicago, would continue to have the power to build airports under State law. The political subdivision's attempts to build runways would likely be ultra vires, without authority, under State law. Under the 10th amendment and the framework of federalism built into the Constitution, Congress cannot command the States to affirmatively undertake an activity. Nor can Congress intrude upon or dictate to the States the prerogatives of the States as to how to allocate and exercise their State power, either directly or by the State or by delegation of State authority to its political subdivisions. It is increasingly clear, Mr. Speaker, that under New York v. United States, Printz v. United States, Gregory v. Ashcroft, and Reno v. Condon that this bill is without the authority of the Constitution of the United States, and our position is that we stand firmly on the side of our Founding Fathers when Congress seeks to impose upon the State of Illinois, ignoring the Illinois Aeronautics Act, this unconstitutional piece of legislation. Mr. Speaker, I rise in opposition to H.R. 3479. Votes on the suspension calendar are supposed to be, by definition, non-controversial. But to argue that H.R. 3479 is non-controversial is like arguing that the elimination of estate taxes, gun control legislation, a patients bill of rights, and prescription drug benefits for seniors should all be on the suspension calendar. H.R. 3479 is one of the most controversial bills to come before the House this year. It has been extremely controversial in Chicago, in the northwest suburbs, in Illinois generally, in the Illinois congressional delegation(our two U.S. Senators are divided over it), in all House and Senate Committees, in the full Senate, and, if a full debate were held on the House floor today, the nation would see just how controversial this bill is. This bill has already been delayed in the Senate with one virtual filibuster--and it will be subjected to every parliamentary and tactical maneuver possible to try to stop it when it comes before the senate again. Hardly non-controversial! To tear down and rebuild O'Hare will cost taxpayers three times as much money as it will cost to build a third South Suburban airport-- $15-20 billion (not the $6.6 billion generally used) versus $5-7 billion. This bill is hardly non-controversial for taxpayers! Tearing down and rebuilding O'Hare is estimated to take 15-20 years, assuming ti proceeds on schedule, without lawsuits--not likely--while building a new South Suburban Airport would take five years, it would expand thereafter as need arises, and would be a more permanent solution to the capacity crisis. When the new O'Hare is completed, we will be in the same position we are today with regard to the air capacity crisis. How is that not controversial? This bill will double the noise pollution in the suburban communities surrounding O'Hare. It is hardly non-controversial in the polluted northwest suburbs of Chicago. Doubling the traffic in the air space around O'Hare from 900,000 to 1.6 million operations will make flying into O'Hare less safe for the public--hardly noncontroversial for the flying public. This bill will increase environmental pollution--O'Hare is already the number one polluter in Illinois--hardly non-controversial for those having to live in the increased pollution. The Chicago Tribune won a Pulitzer Prize for documenting ``sleaze'' surrounding the City of Chicago and past O'Hare construction, vender, and service contracts. By passing this bill--and removing the Illinois Aeronautics Law and by-passing the Illinois General Assembly--we are virtually sanctioning more ``sleaze'' to be found around O'Hare construction, vender, and service contracts. Since when has such potential ``sleaze'' become non-controversial for Congress. I don't consider the Federal Government running over any future Governor of Illinois, the Illinois General Assembly, the Illinois Aeronautics Law, and the 10th Amendment of the U.S. Constitution--to build an airport--non-controversial. Finally, we're already finding out how controversial this bill is as Judge Hollis Webster on July 9, 2002, stopped the City of Chicago from running rough-shod over their northwest suburban neighbors by illegally trying to buy up and tear down their homes and businesses to make room for O'Hare expansion. This is just one of many controversial lawsuits that have been and will be filed in the future if this bill passes and becomes law. How is tearing down and rebuilding O'Hare--which will be three times as expensive, take three times longer, be less protective of the environment, make the skys less safe, and be a less permanent solution than building a third airport--non-controversial? I say, solve the current air capacity crisis by building Peotone first, faster, cheaper, and safer, then evaluate what needs to be done with O'Hare. H.R. 3479 fall woefully short of providing an adequate, equitable solution. Please know that I do not oppose fixing the current air capacity crisis surrounding O'Hare. But I have many, many grave concerns about this specific expansion plan. Concerns about cost. About safety. About environmental impact. About federal precedence--and I associate myself completely with the remarks of my good friend, Mr. Hyde. Although I oppose this bill for many reasons, I rise today to discuss an important element of this bill--constitutionality. The attempt to rebuild and expand O'Hare Airport--Congress is inappropriately violating the Tenth Amendment. In other contexts--specifically with regard to certain human rights-- I believe that the Tenth Amendment serves to place limitations on the federal government with which I disagree. Indeed, in the area of human right, I believe new amendments must be added to the Constitution to overcome the limitations of the Tenth Amendment. However, building airports is not a human right. Therefore, in the present context, I agree that building airports is appropriately within the purview of the states. I believe attempts by Congress to strip the authority of Governor Ryan and the Illinois Legislature over the delegation and authorization to Chicago of state power to build airports--along with the authority of governors and state legislatures in a host of other states such as Massachusetts (Logan), New York (LaGuardia and JFK), New Jersey (Newark), California (San Francisco airport), and the State of Washington (Seattle)--raise serious constitutional questions. Under the framework of federalism established by the federal constitution, Congress is without power to dictate to the states how the states delegate power--or limit the delegation of that power--to their political subdivisions. Unless and until Congress decides that the federal government should build airports, airports will continue to be built by states or their delegated agents (state political subdivisions or other agents of state power) as an exercise of state law and state power. Further compliance by the political subdivision of the oversight conditions imposed by the State legislature as a condition of delegating the state law authority to build airports is an essential element of that delegation of state power. If Congress strips away a key element of that state law delegation, it is highly unlikely that the political subdivision would continue to have the power to build airports under state law. The political subdivision's attempts to build runways would likely be ultra vires (without authority) under state law. Under the Tenth Amendment and the framework of federalism built into the Constitution, Congress cannot command the States to affirmatively undertake an activity. Nor can Congress intrude upon or dictate to the states, the prerogatives of the states as to how to allocate and exercise state power--either directly by the state or by delegation of state authority to its political subdivisions. As states by the United States Supreme Court: [T]he Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States. . . . We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. New York v. United States, 505 U.S. 144, at 166 (1992) (emphasis added) It is incontestable that the Constitution established a system of ``dual sovereignty.'' Printz v. United States, 521 U.S. 898, 981 (1997) (emphasis added) Although the States surrendered many of their powers to the new Federal Government, they retained ``a residuary and inviolable sovereignty,'' The Federalist No. 39, at 245 (J. Madison). This is reflected throughout the Constitution's text. Residual state sovereignty was also implicit, of course, in the Constitution's conferral upon Congress of not all governmental powers, but only discrete, enumerated ones, Art. I, Sec. 8, which implication was rendered express by the Tenth Amendment's assertion that ``[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'' Id at 918-919. This separation of the two spheres is one of the Constitution's structural protections of liberty. ``Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a health balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front. Id at 921 quoting Gregory v. Ashcroft, 501 U.S. 452 at 458 (1991) The Supreme Court in Printz went on to emphasize that this constitutional structural barrier to the Congress introducing on the States' sovereignty could not be avoided by claiming either (a) that the congressional authority was pursuant to the Commerce Power and the ``necessary and proper clause of the Constitution or (b) that the federal law ``preempted'' state law under the Supremacy Clause. 521 U.S. at 923-924. It is important to note that Congress can regulate--but not affirmatively command--the states when the state decides to engage in interstate commerce. See Reno v. Condon, 528 U.S. 141 (2002). Thus in Reno, the Court upheld an act of Congress that restricted the ability of the state to distribute personal drivers' license information. But Reno did not involve an affirmative command of Congress to a state to affirmatively undertake an activity desired by Congress. Nor did Reno involve (as proposed here) an intrusion by the federal government into the delegation of state power by a state legislature--and the sate legislature's express limits on that delegation of state power--to a state political subdivision. H.R. 3479 would involve a federal law which would prohibit a state from restricting or limiting the delegated exercise of state power by a state's political subdivision. In this case, the proposed federal law would seek to bar the Illinois Legislature from deciding the allocation of the state's power to build an airport or runways--and especially the limits and conditions imposed by the State of Illinois on the delegation of that power to Chicago. The law is clear that Congress has no power to intrude upon or interfere with a state's decision as to how to allocate state power. A state's authority to create, modify, or even eliminate the structure and power of the state's political subdivision--whether that subdivision be Chicago, Bensenville, or Elmhurst--is a matter left by our system of federalism and our federal Constitution to the exclusive authority of the states. As stated by the Seventh Circuit in Commissioners of Highways v. United States, 653 F.2d 292 (7th Cir. 1981) (quoting Hunter v. City of Pittsburgh, 207 U.S. 161, 178 (1907)): Municipal corporations are political subdivisions of the State, created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them. For the purpose of executing these powers properly and efficiently they usually are given the power to acquire, hold, and manage personal and real property. The number, nature and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the State. . . . The State, therefore, at its pleasure may modify or withdraw all such power, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the State is supreme, and its legislative body, conforming its action to the state constitution, may do as it will, unrestrained by any provision of the Constitution of the United States. Commissioners of Highways, 653 F.2d at 297 Chicago has acknowledged that Illinois has delegated its power to build and operate airports to its political subdivisions by express statutory delegation. 65 ILCS 5/ 11-102-1, 11-102-2 and 11-102-5. These state law delegations of the power to build airports and runways are subject to the Illinois Aeronautics Act requirements--including the requirement that the State approve any alterations of the airport--by their express terms. Any attempt by Congress to remove a condition or limitation imposed by the Illinois Legislature on the terms of that state law delegation of authority would likely destroy the delegation of state authority to build airports by the Illinois Legislation to Chicago--leaving Chicago without delegated state legislative authority to build runways and terminals at O'Hare or midway. The requirement that Chicago receive a state permit is an express condition of the grant of state authority and an attempt by Congress to remove that condition or limitation would mean that there was no continuing valid state delegation of authority to Chicago to build airports. Chicago's attempts to build new runways would be ultra vires under state law as being without the required state legislative authority. Clearly this bill sets dangerous precedence by stating that Congress--not the FAA, not Departments of Transportation, not aviation experts--but Congress shall plan and built airports. Further, it ignores the 10th Amendment to the U.S. Constitution. It guts and/or undermines state laws and environmental protections. And it sidesteps the checks-and-balances and the public hearing process. My focus today is the same as it's always been. Finding the best fix. And that best fix is the construction of a third Chicago airport near Peotone, Illinois. The plain truth is Peotone could be build in one- third the time at one-third the cost. For taxpayers and travelers, it's a no-brainer. Unfortunately, this bill mandates expansion of O'Hare yet pays mere lip service to Peotone. It puts the projects on two separate and unequal tracks. That is my opinion. That is also the opinion of the Congressional Research Service, whose analysis I will provide for the record. What we don't need at this critical juncture is favoritism or interference from politicians and profit-oriented airlines to stack the deck against Peotone. What we don't need is a bill that increases the likelihood of a constitutional challenge that prolongs the debate and delays the fix. Thus, I urge members to reject this unprecedented, unwise, and unconstitutional bill. Ronald D. Rotunda, University of Illinois College of Law, Champaign, IL, March 1, 2002. Re Proposed federal legislation granting new powers to the city of Chicago. Hon. Jesse L. Jackson, Jr., House of Representatives, Washington, DC. Dear Congressman Jackson. As you know, I serve as the Albert E. Jenner Professor of Law at the University of Illinois Law School. I have authored a leading course book on Constitutional Law. In addition, I co-author, along with my colleague John Nowak, the widely-used multi-volume Treatise on Constitutional Law, published by West Publishing Company. In addition to my books, I have taught and researched in the area of Constitutional Law since 1974. I have been asked to give my opinion on the constitutionality of proposed federal legislation entitled ``National Aviation Capacity Expansion Act,'' identical versions of which have been introduced in both the Senate and the House of Representatives by Senator Durbin and Congressman Lipinski (S. 1786, HR 3479), hereafter the ``Durbin-Lipinski legislation.'' The Durbin-Lipinski legislation seeks to enact Congressional approval of a proposal to construct a major alteration of O'Hare Airport in Chicago. While this legislation focuses on Chicago and the State of Illinois, the issues raised by the legislation have serious constitutional implications for all 50 States. There are two key components of the legislation that have been the subject of my examination. First Section 3(a)(3) attempts to give the City of Chicago (a political subdivision and instrumentality of the State of Illinois) the legal power and authority to build a proposed major alteration of O'Hare even though state law does not authorize Chicago to build the alteration without first receiving a permit from the State of Illinois. Chicago, as a legal entity, is entirely a creation of state--not federal law--and Chicago's authority to build airports is essentially an exercise of state law power delegated to Chicago by the Illinois General Assembly. The requirement that Chicago first obtain a state permit is an integral and essential element of that delegation of state power. The U.S. Constitution prohibits Congress (1) from invading and commandeering the exercise of state power to build airports, and (2) from changing the allocation of state-created power between the State of Illinois and its political subdivisions. The U.S. Constitution, in short, prohibits Congress from essentially rewriting state law dealing with the delegation of state power by eliminating the conditions, restrictions, and prohibitions imposed by the Illinois General Assembly on that delegation. These constitutional restrictions on Congress' power--which prohibit Congress from requiring states to change their state laws governing cities--are often termed Tenth Amendment restrictions. Similarly, the provisions of Section 3(f) of the proposed Durbin-Lipinski legislation are necessarily conditioned upon the existence of state law authority of Chicago to enter into agreements for a third party (the FAA) to alter O'Hare without first obtaining a permit from the State of Illinois. But Chicago has no state law authority (under the delegation of state power to build and alter airports) to enter into an agreement to engage in a massive alteration of O'Hare without a state permit. Congress cannot confer powers on a political subdivision of a State where the State has expressly limited its delegation of state power to build airports to require a state permit. Congress has no constitutional authority to create powers in an instrumentality of State law (Chicago) when the very authority and power of Chicago to undertake the actions proposed by Congress depends on compliance with--and is contrary to--the mandates of the Illinois General Assembly. For the reasons discussed below, it is my opinion that the proposed legislation is unconstitutional. Summary of Analysis The following is a summary of my analysis: 1. Under the governing United States Supreme Court decisions of New York v. United States and Printz v. United States, which are discussed below, the proposed legislation is not supported by any enumerated power and thus violates the limitations of the Tenth Amendment of the Constitution. In these decisions, the Supreme Court held that legislation passed by Congress, purportedly relying on its exercise of the Commerce Power (nuclear waste legislation in New York and gun control legislation in Printz) was unconstitutional because the federal laws essentially commandeered state law powers of the States as instrumentalities of federal policy. 2. The same constitutional flaws afflict the proposed Durbin-Lipinski legislation. Central to the Durbin-Lipinski legislation are two provisions [sections 3(a)(3) and 3(f)] that purport to empower or authorize Chicago (a political instrumentality of the State of Illinois, and thus a city that has no authority or even legal existence independent of state law) to undertake actions for which Chicago has not received any delegation of authority from the State of Illinois and that, in fact, are directly prohibited by Illinois law when the conditions and limitations of the State delegation of authority have not been satisfied. 3. Under Illinois law, Chicago (like any other political subdivision of a State) has no authority to undertake any activity (including constructing airports) without a grant of state authority from the State of Illinois. Under Illinois law, actions taken by political subdivisions of the State (e.g., Chicago) without a grant of authority from the State, or actions taken by political subdivision in violation of the conditions, limitations or prohibitions imposed by the State in delegating the state authority, are plainly ultra vires, illegal, and unenforceable. The City of Chicago is a creature of state law, not federal law. 4. The power exercised by any state political subdivision (e.g., the power to construct airports) is in reality a power of the State--not inherent in the existence of the political subdivision. For the political subdivision to have the legal authority to exercise that state power, there must be a delegation of that state power by the State to the political subdivision. Further, it is axiomatic that any such delegation of state power to a political subdivision must be exercised in accordance with the conditions, limitations, and prohibitions accompanying the State's delegation of that power. 5. In the case of airport construction, the Illinois General Assembly has enacted a statute that delegated to Chicago (and other municipalities) the state law power to construct airports explicitly and specifically subject to certain limits and conditions that the General Assembly imposed. One basic requirement is that Chicago must first comply with all of the requirements of the Illinois Aeronautics Act--including the requirement that Chicago first receive a permit (a certificate of approval) from the State of Illinois. the Illinois General Assembly has expressly provided that municipal construction or alteration of an airport without such a state permit is unlawful and ultra vires. 6. Section 3(a)(3) of the Durbin-Lipinski legislation expressly authorizes Chicago to proceed with the ``runway redesign plan'' (a multi-billion dollar modification of O'Hare) without regard to the clear delegation limitations and prohibitions imposed by the Illinois General Assembly on the state statutory delegation to Chicago of the state law power to construct airports. Illinois law explicitly says Chicago has no state law authority to build or alter airports without first complying with the Illinois Aeronautics Act, including the state permitting requirements of Sec. 47 of that Act. Even though Chicago (a political creation and instrumentality of the State of Illinois) has no power to build or modify airports (a state law power) unless Chicago obtains State approval, Section 3(a)(3) purports to infuse Chicago (which has no legal existence independent of state law) with a federal power to build airports and to disregard Chicago's fundamental lack of power under state law to undertake such actions (absent compliance with state law). Like New York v. United States and Printz v. United States the proposed Durbin-Lipinski legislation involved Congress attempting to use a legal instrumentality of a State (i.e., the state power to build airports exercised through its delegated state-created instrumentality, the city of Chicago) as an instrument of federal power. As the Supreme Court held in New York and Printz, the Tenth Amendment--and the structure of ``dual sovereignty'' it represents under our constitutional structure of federalism-- prohibits the federal government from using the Commerce power to conscript state instrumentalities as its agents. 7. Similar problems articulated in New York and Printz fatally afflict Section 3(f) of the proposed Durbin-Lipinski legislation. That section provides that, if (for whatever reason) construction of the ``runway design plan'' is not underway by July 1, 2004, then the FAA Administrator (a federal agency) shall construct the ``runway redesign plan'' as a ``Federal Project''. But, Section 3(f)(1) then provides that this ``federal project'' must obtain several agreements and undertakings from Chicago--agreements and undertakings that are controlled by state law, which limits Chicago's authority to enter into such agreements or accept such undertakings. Chicago has no authority under the state law (which confers upon Chicago the state power to construct airports) to enter into agreements with any third party (be it the United States or a private party) to make alterations of an airport without the state permit required by state statute. Thus, Chicago has no authority under state law to enter into an agreement with the FAA Administrator to have the runway redesign plan constructed by the Federal government because Chicago has not received approval from the State of Illinois under the Illinois Aeronautics Act--a specific condition and prohibition of the delegation of state power (to build airports) to Chicago by the Illinois General Assembly. Just as Chicago (a creation and instrumentality of the State of Illionis) has no power or authority under state law (absent compliance with the Illinois Aeronautics Act) to enter into an agreement for the FAA to construct the runway redesign plan, Chicago also has no power or authority (absent compliance with the Illinois Aeronautics Act) to enter into the other agreements provided for in Sections 3(f)(1)(B) of the Durbin-Lipinski legislation. Again, Section 3(f) is an attempt to have Congress use the Commerce power to conscript state instrumentalities as its agents. Instead of Congress regulating interstate commerce directly (which both New York v. United States and Printz allow), the Durbin-Lipinski legislation seeks to regulate how the State regulates one of its cities (which both New York v. United States and Printz do not allow). 8. The Durbin-Lipinski legislation is not a law of ``general application''. There is a line of Supreme Court decisions which allow Congress to use the Commerce Power to impose obligations on the States when the obligations imposed on the States are part of laws which are ``generally applicable'' i.e., that impose obligations on the States and on private parties alike. See e.g., Reno v. Condon, 528 U.S. 141 (2000) (Federal rule protecting privacy of drivers' records upheld because they do not apply solely to the State), South Carolina v. Baker, 485 U.S. 505 (1988); (state bond interest not immune from nondiscriminatory federal income tax); Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, (1985) (law of general applicability, binding on States and private parties, upheld). But these cases have no application where, as here and in New York and Printz, the Congressional statute is not one of general applicaiton but a specifically directed at the States to use state law instrumentalities as tools to implement federal policy. Here the Durbin-Lipinski legislation is doubly unconstitutional, because it does not apply to private parties or even to all States but only to one State (Illinois) and its relationship to one city (Chicago). The Durbin-Lipinski legislation proposes to use Chicago (an instrumentality of state power whose authority to construct airports is an exercise of state power expressly limited and conditioned on the limits and prohibitions imposed on that delegation by the Illinois legislature) as a federal instrumentality to implement federal policy. Congress is commandeering a state instrumentality of a single State (Illinois) against the express statutory will of the Illinois Legislature, which has refused to confer on Chicago (an instrumentality of the State) the state law power and authority to build airports unless Chicago first obtains a permit from the State of Illinois. This is an unconstitutional use of the Commerce Power under the holdings New York and Printz and does not fall within the ``general applicability'' line of cases such as Reno v. Condon, South Carolina v. Baker, and Garcia. analysis Before discussing any further the specific provisions of the Durbin-Lipinski legislation, let us review some important background law. A. The basic legal principles Cities are Creatures of the States and State Law--Not Instrumentalities of Federal Power. Normally, this controversy surrounding the proposed expansion of O'Hare Airport would be left to the state political process. Under Illinois law, the cities in this state have only the power that the State Constitution or the legislature grants to them, subject to whatever limits the State imposes. This legal principle has long been settled. Nearly a century ago, the U.S. Supreme Court, in Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907) held that, under the U.S. Constitution, cities are merely creatures of the State and have only those powers that the State decides to give the, subject to whatever limits the States choose to impose: ``This court has many times had occasion to consider and decide the nature of municipal corporations, their rights and duties, and the rights of their citizens and creditors. [Citations omitted.] It would be unnecessary and unprofitable to analyze these decisions or quote from the opinions rendered. We think the following principles have been established by them and have become settled doctrines of this court, to be acted upon wherever they are applicable. Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the state as may be [e]ntrusted to them. . . . The number, nature, and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the state. . . . The state, therefore, at its pleasure, may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the state is supreme, and its legislative body, conforming its action to the state Constitution, may do as it will, unrestrained by any provision of the Constitution of the United States.'' Hunter held that a State that simply takes the property of municipalities without their consent and without just compensation did not violate due process. While Hunter is an old case, it still is the law, and the Seventh Circuit recently quoted with approval the language reprinted here. The Illinois Aeronautics Act Expressly Limits Chicago's Power to Build and Alter. The State of Illinois has delegated to Chicago the power to build and alter airports. But that power is expressly limited by the requirement that Chicago must comply with the Illinois Aeronautics Act. And the Illinois Aeronautics Act provides that Chicago has no power to make ``any alteration'' to an airport unless it first obtains a permit, a ``certificate of approval,'' from the State of Illinois. Finally, Chicago has not obtained this certificate of approval. That fact is what has led to the proposed federal intervention. B. The federalism problem As mentioned above, section 3(a)(3) of the proposed federal law overrides the licensing requirements of Sec. 47 of the Illinois Aeronautics Act. This section states: ``(3) The State shall not enact or enforce any law respecting aeronautics that interferes with, or has the effect of interfering with, implementation of Federal policy with respect to the runway redesign plan including sections 38.01, 47, and 48 of the Illinois Aeronautics Act.'' In addition, section 3(f) authorizes Chicago to enter into an agreement with the federal government to construct the O'Hare Airport expansion. This project is called a ``Federal project,'' but Chicago must agree to construct the ``runway redesign as a Federal Project,'' and Chicago provides the necessary land, easements, etc., ``without cost to the United States.'' What this proposed legislation does is authorize the City of Chicago to implement an airport expansion approved by the Administrator of the Federal Aviation Administration. But, under state law, Chicago cannot expand O'Hare because it does not have the required state permit. There is no doubt that the O'Hare Airport is a means of interstate commerce, and Congress may certainly impose various rules and regulations on airports, including O'Hare. Congress, for example, may decide to require airport security and require that the security agents be federal employees. Or, Congress could provide that it would build and takeover the O'Hare Airport and construct expansion if the State of Illinois refused to do so. Congress may also use its spending power to take land by eminent domain and then construct or expand an airport, no matter that the state law provides. The limits on the spending clause are few. But, the proposed law does not take such alternatives. It does not impose regulations on airports in general, nor does it exercise the very broad federal spending power. Nor does the proposed law authorize the federal government take over ownership and control of O'Hare Airport. Instead, it seeks to use an instrumentality of state power (i.e., the state law power to build airports as delegated to a state instrumentality, the city of Chicago) as an exercise of federal power. The proposed federal law is stating that it is creating a federal authorization or empowerment to the City of Chicago to do that which state law provides that Chicago may not do-- expand O'Hare Airport without complying with state laws that create the City of Chicago and delegate to it certain limited powers that can be exercised only if within the limits of the authorizing state legislation. New York v. United States The proposed federal law is very similar to the law that the Supreme Court invalidated a decade ago in New York v. United States. The law that New York invalidated singled out states for special legislation and regulated that states' regulation of interstate commerce. The proposed Durbin- Lipinski legislation singles out a State (Illinois) for special legislation and regulates the State's regulation of interstate commerce dealing with O'Hare Airport. While the law in this area has shifted a bit over the last few decades, it is now clear that Congress can use the Interstate Commerce Clause to impose various burdens on States as long as those laws are ``generally applicable.'' The federal law may not single out the State for special burdens. For example, Congress may impose a minimum wage on state employees in, or affecting, interstate commerce as long as Congress imposes the same minimum wage requirements on non-state workers in, or affecting, interstate commerce. Congress can regulate the States using the Commerce Clause if it imposes requirements on the States that are generally applicable--that is, if it imposes the same burdens on private employers. Congress cannot single out the States for special burdens; it cannot commandeer or take control over the States or order a state legislature to increase the home rule powers of the City of Chicago; it cannot enact federal legislation that adds to or revises Chicago's state created and limited delegated powers. The leading case, New York v. United States, held that the Commerce Clause does not authorize the Federal Government to conscript state governments as its agents. ``Where a federal interest is sufficiently strong to cause Congress to legislate, it must do so directly; it may not conscript state governments as its agents.'' The proposed Durbin-Lipinski legislation will do exactly what New York prohibits: it will conscript the City of Chicago as its agent and interfere with the relationship between the State of Illinois and the entity it created, the City of Chicago. New York invalidated a legislative provision that is strikingly similar to the proposed federal Durbin-Lipinski legislation. The Court, in the New York case, considered the Low-Level Radioactive Waste Policy Amendments Act of 1985. Congress was concerned with a shortage of disposal sites for low level radioactive waste. The transfer of waste from one State to another is obviously interstate commerce. Congress, in order to deal with the waste disposal problem, crafted a complex statute with three parts, only one of which was unconstitutional. There were a series of monetary incentives, which the Court unanimously upheld under Congress' broad spending powers. Congress also authorized States that adopted radioactive waste and storage disposal guidelines to bar waste imported from States that had not adopted certain storage and disposal programs. The Court, again unanimously, relied on long-settled precedent that approves of Congress creating such trade barriers in interstate commerce. Then the Court turned to the ``take title'' provisions and held (six to three) that they were unconstitutional. The ``take title'' provision in effect required a State to enact certain regulations and, if the State did not do so, it must (upon the request of the waste's generator or owner), take title to and possession of the waste and become liable for all damages suffered by the generator or owner as a result of the State's failure to promptly take possession. The Court explained that Congress could, if it wished, preempt entirely state regulation in this area and take over the radioactive waste problem. But Congress could not order the States to change their regulations in this area. Congress lacks the power, under the Constitution, to regulate the State's regulation of interstate commerce. This is what the proposed federal O'Hare Airport bill will do: it will regulate the State's regulation of interstate commerce by telling the State that it must act as if the City of Chicago has complied with the Illinois Aeronautics Act and other state rules. In a nutshell, Congress cannot constitutionally commandeer the legislative or executive branches. The Court pointed out that this commandeering is not only unconstitutional (because nothing in our Constitution authorizes it) but also bad policy, because federal commandeering serves to muddy responsibility, undermine political accountability, and increase federal power. The proposed Durbin-Lipinski legislation prohibits Illinois from applying its laws regulating one of its cities. The proposed federal law also authorizes the federal government to make an agreement with Chicago, pursuant to which Chicago will assume some significant obligations, even though present state law gives Chicago no authority to engage in this activity. As the six to three New York decision made clear: ``A State may not decline to administer the federal program. No matter which path the State chooses, it must follow the direction of Congress. . . . No other federal statute has been cited which offers a state government no option other than that of implementing legislation enacted by Congress. Whether one views the take title provision as lying outside Congress' enumerated powers, or as infringing upon the core of state sovereignty reserved by the Tenth Amendment, the provision is inconsistent with the federal structure of our Government established by the Constitution.'' The proposed Durbin-Lipinski legislation is very much like the law that six justices invalidated in New York. The O'Hare bill provides that, no matter what the State chooses, ``it must follow the direction of Congress.'' The State has ``no option other than that of implementing legislation enacted by Congress.'' The Court in New York went on to explain that there are legitimate ways that Congress can impose its will on the states: ``This is not to say that Congress lacks the ability to encourage a State to regulate in a particular way, or that Congress may not hold out incentives to the States as a method of influencing a State's policy choices. Our cases have identified a variety of methods, short of outright coercion, by which Congress may urge a State to adopt a legislative program consistent with federal interests. Two of these methods are of particular relevance here.'' The Court then discussed those two alternatives. First, there is the spending power, with Congress attaching conditions to the receipt of federal funds. The proposed Durbin-Lipinski legislation rejects the spending power alternative. Second, ``where Congress has the authority to regulate private activity under the Commerce Clause, we have recognized Congress' power to offer States the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation.'' The proposed Durbin-Lipinski legislation rejects that alternative as well. It does not propose that Congress directly takeover and expand O'Hare Airport. Instead, it proposes that the City of Chicago be allowed to exercise power that the State does not allow the City to exercise. New York v. United States did not question ``the authority of Congress to subject state governments to generally applicable laws.'' But Congress cannot discriminate against the States and place on them special burdens. It cannot commandeer or command state legislatures or executive branch officials to enforce federal law. Congress can regulate interstate commerce and States are not immune from such regulation just because they are States. For example, Congress can forbid employers from hiring child labor to work in coal mines, whether a private company or a State owns the coal mine and employs the workers. Printz v. United States. Following the New York decision, the Court invalidated another federal statute imposing certain administrative duties on local law enforcement officials, in Printz v. United States. The Brady Act, for a temporary period of time, required local law enforcement officials to use ``reasonable efforts'' to determine if certain gun sales were lawful under federal law. The federal law also ``empowered'' these local officers to grant waivers of the federally prescribed 5-day waiting period for handgun purchases. Note that the proposed Durbin-Lipinski legislation will also ``empower'' the City of Chicago to do that which Illinois does not authorize the city to do. To make the analogy even more compelling, the chief law enforcement personal suing in the Printz case said that state law prohibited them from undertaking these federal responsibilities. That, of course, is the exact position in which Chicago finds itself. State law prohibits Chicago from entering into and committing to these federal responsibilities (e.g., the agreements between Chicago and the FAA in Sec. 3(f) of the proposed Durbin-Lipinski legislation call for construction as a ``federal project'' but then require Chicago to either construct or allow construction without a permit from the State of Illinois). We should realize that the proposed Durbin-Lipinski legislation--in commanding and singling out the State of Illinois to, in effect, repeal its legislation governing the powers delegated to the City of Chicago--is quite unusual and not at all in the tradition of federal legislation. For most of our history, Congress would explicitly only ``recommend'' or ``request'' the assistance of the governors and state legislatures in implementing federal policy. It is only in very recent times that Congress has sought explicitly to commandeer or order the legislative and executive branches of the States to implement federal policies. Because such federal legislative activity is recent, the case law in this area is recent, but the case law is clear in prohibiting this type of federal assertion of power. New York v. United States held that Congress cannot ``command a State government to enact state regulation.'' Congress may regulate interstate commerce directly, but it may not ``regulate state governments' regulation of interstate commerce.'' The Federal Government may not ``conscript state governments as its agents.'' Congress has the ``power to regulate individuals, not States.'' In short, there are important limits on the power of the federal government to commandeer the state legislature or state executive branch officials for federal purposes. Another way to think about this issue is that, to a certain extent, the Constitution forbids Congress from imposing what recently have been called ``unfunded mandates'' on state officials. Congress cannot simply order the States or state officials or a city to take care of a problem. Congress can use its spending power to persuade the States by using the carrot instead of the stick. While there are those who have attacked the restrictions that New York v. United States have imposed on the Federal Government, it is worth remembering the line-up of the Court in Maryland v. Wirtz when the justices first considered this issue. That case rejected the applicability of the Tenth Amendment and held that it was constitutional for Congress to set the wages, hours, and working conditions of employees, including state employees in interstate commerce. However, Justice Douglas, who was joined by Justice Stewart, dissented. Douglas found the law to be a ``serious invasion of state sovereignty protected by the Tenth Amendment'' and ``not consistent with our constitutional federalism.'' He objected that Congress, using the broad commerce power, could ``virtually draw up each State's budget to avoid `disruptive effect[s]' '' on interstate commerce. New York v. United States prevents this result. The ``generally applicable'' restriction is important, and it explains Reno v. Condon. Congress enacted the Driver's Privacy Protection Act (DPPA), which limited the ability of the States to sell or disclose a driver's personal information to third parties without the driver's consent. Chief Justice Rehnquist, for a unanimous Court, upheld the law as a proper regulation of interstate commerce and not violating any principles of federalism found in New York v. United States or Printz because the law was ``generally applicable.'' Reno grew out of a congressional effort to protect the privacy of drivers' records. As a condition of obtaining a driver's license or registering a car, many States require drivers to provide personal information, such as name, address, social security number, medical information, and a photograph. Some States then sell this personal information to businesses and individuals, generating significant revenue. To limit such sales, Congress enacted the DPPA, which governs any state department of motor vehicles (DMV), or state officer, employee, or contractor thereof, and any resale or re-disclosure of drivers' personal information by private persons who obtained the information from a state DMV. The Court concluded: ``The DPPA's provisions do not apply solely to States.'' Private parties also could not buy the information for certain prohibited purposes nor could they resell the information to other parties for prohibited purposes, and the States could not sell the information to the private parties for certain purposes if the private parties could not buy it for those purposes. Unlike the law in New York, the Court concluded that the DPPA does not control or regulate the manner in which States regulate private parties, it does not require the States to regulate their own citizens, and it does not require the state legislatures to enact any laws or regulations. Unlike the law in Printz, the DPPA does not require state officials to assist in enforcing federal statutes regulating private individuals. This DMV information is an article of commerce and its sale or release into the interstate stream of business is sufficient to support federal regulation. The DPPA is a ``generally applicable'' federal law regulating commerce because it regulates the universe of entities that participate as suppliers to the market for motor vehicle information--the states as initial suppliers and the private resellers or redisclosers of this information. ``South Carolina has not asserted that it does not participate in the interstate market for personal information. Rather, South Carolina asks that the DPPA be invalidated in its entirety, even as applied to the States acting purely as commercial sellers.'' Conclusion The proposed federal law dealing with the O'Hare Airport expansion is most likely unconstitutional because it imposes federal rules on the relationship between a city and the State that created the city. It subjects Illinois to special burdens that are not generally applicable to private parties or even to other States. It authorizes the City of Chicago to do that which Illinois now prohibits. There is no escape from the conclusion that the proposed federal law does not regulate the behavior of private parties in interstate commerce. It does not subject the State of Illinois to ``generally applicable'' legislation. Instead, Congress is regulating the state's regulation of interstate commerce. Congress may not conscript the instrumentalities of state government and state power as tools of federal power. The case law is clear that Congress does not have this power. Sincerely, Ronald D. Rotunda, The Albert E. Jenner, Jr. Professor of Law.

Mr. JACKSON of Illinois. Mr. Speaker, will the gentleman yield?

Mr. JACKSON of Illinois. Mr. Speaker, I yield such time as he may consume to the gentleman from Illinois (Mr. Hyde), the distinguished chairman of the Committee on International Relations.

Mr. JACKSON of Illinois. Mr. Speaker, I yield myself 2\1/2\ minutes. Mr. Speaker, we have heard some arguments about the constitutionality of this act, this unprecedented act of Congress. But in New York v. The United States, the Supreme Court was really clear. The Framers, they said, explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States. We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power to directly compel the States to prohibit those acts, New York v. The United States. Printz v. The United States: It is uncontestable that the Constitution established a system of ``dual sovereignty.'' And Federalist No. 39: Although the States surrendered many of their powers to the new Federal Government, they retained ``a residuary and inviolable sovereignty,'' Federalist No. 39. Mr. Speaker, that brings us to, from my perspective, the Printz decision. You heard some of the economic arguments about 47 States going through O'Hare Airport and the implications of that. This is about process and it is about doing it right. In Printz, the court went on to emphasize that this constitutional structural barrier to the Congress intruding on a State's sovereignty could not be avoided by claiming, A, that the Congressional authority was pursuant to the Commerce Power. All of the economic arguments are irrelevant, according to Printz v. The United States; and, B, that the Federal law preempted the State law under the supremacy clause. Even the supremacy clause arguments of Congress are not unavailable. And last I checked, the majority on the current Supreme Court are the same majority that decided Printz. And unless they are willing to overturn Printz, this piece of legislation before us, Mr. Speaker, is unconstitutional, which raises the next point. Because this is likely heading to Federal court, we are not going to solve the national aviation capacity problem any time soon, which is why we need a faster, cheaper, safer solution of expanding aviation capacity for our Nation's aviation system. That can be accomplished, not with a 13 to $15 billion, 20-year project at O'Hare Airport; it is accomplishable by building a third airport in Peotone, Illinois, which my colleagues who have risen today aptly support. Mr. Speaker, I reserve the balance of my time.

Mr. JACKSON of Illinois

Mr. JACKSON of Illinois. Mr. Speaker, Dr. Martin Luther King, Jr. once said, ``quiet is the absence of noise, but peace requires the presence of justice.'' As Americans, that is our charge and our challenge in the Middle East. We seek not only to establish quiet from bombs and bullets, but also to achieve a just, lasting and comprehensive peace. Even at this dark hour of death and destruction, peace is still possible in the Middle East. Although involving Arabs and Jews, the crisis in the region is not an ethnic problem. While it invokes Judaism and Islam, it is not a religious problem. Though engulfing an ancient land, it is not an archaic problem. At its root, the crisis between the Israelis and the Palestinians is a political problem requiring a political solution, not a military one. It is intractable, but not impossible. And, it demands American engagement and American leadership to solve. Our proper and necessary role in the region must be that of an honest and balanced broker, a mediator between the two sides, and a facilitator of peace. A broker understands and honors the needs, fears and aspirations of each and must maintain the trust and confidence of both. A mediator talks and listens to both sides, steps in the gaps of distrust and enmity, and reconciles differences and disputes. A facilitator recognizes and holds both sides accountable for the obligations and compromises each side must make for progress and peace. Undoubtedly, just as it takes more than one party to make war, it takes more than one party to make peace. While we have no closer friend and ally than Israel, it is not our only friend and ally. Our interests are broad and should not be restricted to just one country in the entire region. To do so, would compromise our own long-term national interests, diminish our standing and influence in the world, and abdicate our role and responsibility as the sole Superpower. Such a move would be tragic for us and for them, leaving both sides with no final arbiter, no place to turn other than violence. It's time to break that vicious cycle. It's time to end the bloodshed and the heartbreak. It's time to do everything in our power to encourage both sides to make the hard choices and to take the daring steps toward peace. Yet, instead of leadership and vision, this Congress has offered an unbalanced, untimely and counterproductive resolution. Because of what is in it and what is not, H. Res. 392 is not what is needed now. It is not constructive. It will not advance peace. I cannot support it. This resolution rightly demonstrates support for the security of Israel. We recognize Israel's vulnerable position amidst a hostile neighborhood and unequivocally support and defend its right to exist within secure and internationally recognized boundaries. However, this resolution wrongly omits statements of support for Palestinian self-determination and national rights. We should reaffirm our support for the right of the Palestinians to have their own state with secure and internationally recognized boundaries. This resolution correctly condemns and opposes the use of terrorism and suicide bombings that intentionally targets and kills innocent Israeli civilians. We uphold Israel's right to combat legitimate targets and prevent such savage and brutal attacks. Yet, this measure unfairly ignores the Israeli occupation and settlements on Palestinian territory. In a recent editorial, The New York Times stated, ``Just as terror is the greatest Palestinian threat to Middle East peace, so are settlements on territory captured in the 1967 war the greatest Israeli obstacle to peace. They deprive the Palestinians of prime land and water, break up Palestinian geographic continuity, are hard to defend against Palestinian attack and complicate the establishment of a clear, secure Israeli border.'' H. Res. 392 properly cites the mounting death toll and carnage caused by Palestinian attackers on Israelis. We mourn their deaths and share their grief. Yet, the measure makes only passing reference to Palestinian casualties and no mention at all of Israel's controversial incursion into Jenin, where the debris, devastation and death warrant an impartial investigation and an international humanitarian response. Perhaps most unsettling is the imperfect analogy within which this resolution is framed. The measure equates America's war on terrorism with Israel's campaign in the West Bank. But, such a clear and convenient comparison is not so easy to make and, as The Washington Post observed, ``overlooks this contest for territory and sovereignty underlying the Israeli-Palestinian bloodshed.'' Surely, Israel is justified in protecting itself and uprooting terrorism. While war is disastrous and often messy, it does not justify deliberately raiding and wrecking banks, schools, streets, and municipal buildings. Yet, the Israeli offensive in the West Bank not only dismantled the terrorist infrastructure, but also systematically destroyed the civil infrastructure and institutions of Palestinian self-government. They are not one in the same. Yet, both lay in ruin. If only for their own sake and standing, Israel must adopt a policy that differentiates between the two. And, the world should know that we know the difference as well. In this bloody stalemate, one side is not entirely at fault and the other completely free of it. Both sides know fear. Both know hardship. Both know suffering and tragedy. But, instead of comparing and measuring wounds, we should aid in healing them. Rather than concentrating on the failures of war, we should focus on the possibilities of peace. Peace should be the crux and motive of this measure. But, it is not, and so the Administration asked the House not to consider it. Yet, despite the objections, Congress does so anyway. In lieu of H. Res. 392, Congress should offer its imprimatur, its influence, and its ideas to animate and encourage efforts to pave a pathway to peace. We know that the framework already exists in U.N. Resolution 242, 338, 1397, 1402, Oslo, and most recently, the Saudi Peace Initiative. We know that the basic formula is land for peace. We know that an economic recovery plan is necessary to rebuild and revitalize the region. We know that an international presence is required to sustain a final negotiated settlement. Now, we, the United States, must help to figure out how to forge it and flesh it out. Undoubtedly, it will be hard. At the very least, it will require the commitment of the Israelis and the Palestinians. Both sides must meet the challenge and give to the other what it wants for itself--dignity, security and peace. Ultimately, there will and must be two nations--Israel and a Palestinian state--living as neighbors, both sovereign, secure, stable, free and democratic. Only then, after such a long and tumultuous nightmare, Israelis and Palestinians will wake up in the Holy Land to a new morning. And, to peace.

Mr. JACKSON of Illinois

Mr. JACKSON of Illinois. Mr. Speaker, I rise in strong opposition to H.R. 3295. As it is currently drafted, the Help America Vote Act of 2001 plainly fails to address the grave problems so many Americans faced in the 2000 elections and continued to face this year. In our democracy, we must apply a gold standard when it comes to creating a fair, effective, and efficient electoral system. Americans citizens have fought, bled and died to protect all citizens from discrimination in their ability to vote. Therefore, the bloodied nose of the Rev. C.T. Vivian, and the use of fire hoses and the jailing of children to prevent some Americans from voting, must not be forgotten. The deaths of Schwerner, Goodman and Cheney must not be in vain. The struggle and advances in the 1965 Voting Rights Act and its extension and expansions in 1970, 1975, and 1982 must not be undercut. The Motor Voter Act must not be made less effective. Congress needs to ensure that when it passes election reform legislation it truly solves the problems that voters throughout our nation encounter as they cast their ballots. Comprehensive electoral reform must move us forward with minimum mandatory standards that ensure uniformity and nondiscrimination. Under these standards all voters must have effective machinery that allows them to cast the vote they intend and to correct their ballot if they make a mistake. Comprehensive electoral reform must guarantee that legally registered voters are not erroneously purged from registration rolls, that voters are notified of and given the opportunity to cast provisional ballots, and finally, it must require that voters are informed of their rights under state and federal law. The one bill that goes the distance and addresses these problems head on is the Equal Protection of Voting Rights Act of 2001, introduced by Senator Christopher Dodd and Congressman John Conyers. A simple examination of the details of the Help America Vote Act makes clear that there are serious problems that prevent it from bringing about true election reform and which actually take steps backward. H.R. 3295 has inadequate minimum standards for machinery. It does not ensure that voting systems, even those newly purchased with federal monies, will be accessible, give the voter notice of overvotes and undervotes and the opportunity to correct their ballot before it is cast, and will meet a national error rate standard. Comprehensive electoral reform must provide these minimum requirements for all voting machines if it is to correct the problems that voters all over our nation faced on election day 2000 and 2001. H.R. 3295 creates a loophole that allows states to opt out of provisional balloting. Provisional balloting is critical to ensure that registered voters have the ability to cast provisional ballots when there is confusion over issues of registration, identification or voting rights at the polling place. H.R. 3295 allows states to adopt ``an alternative'' to provisional balloting which in practice will undermine the access to and uniformity of provisional ballots. Furthermore, H.R. 3295 does nothing to guarantee that voters are aware of their right to cast a provisional ballot. More often than not, election officials do not provide adequate notification to voters that they can cast a provisional ballot. Therefore, for a provisional ballot measure to be meaningful and be a true safeguard, as it is intended to be, it must require that election officials notify voters that they can receive a provisional ballot and also notify the voter of the final result. Problems with registration cannot be remedied unless voters know whether their ballot is counted. H.R. 3295 rolls back existing federal law that protects people from being purged if they have not voted. Two provisions in H.R. 3295 take a significant step backward to undermine the protections provided to voters against purging for erroneous information. These provisions turn the National Voter Registration Act of 1993 (the ``NVRA'') on its head by allowing state officials to remove individuals from registration lists because they have not voted in two successive federal elections and then don't respond to a notice. Current federal law does not allow voters to be purged from the rolls for not voting. However, the language of H.R. 3295 appears to allow such a practice and specifically amends a section of the National Voter Registration Act to change language which prevents voters from being purged for not voting. (See H.R. 3295, Section 502(2)(a) and Section 902(a)). Under these provisions, voters will be disenfranchised because the result of the purge is that they are not properly registered and, thus, cannot then have the safeguard of a provisional ballot to vote. Additionally, H.R. 3295, as it is currently drafted, also eliminates the ``fail safe'' provision of the NVRA which allows voters to correct erroneous information that caused the purge and then confirm their address in writing so that they can cast their ballot at the polling place. (42 U.S.C. Sec. 1973gg-6(g)). Without this provision voters can be removed from the polls with no opportunity to correct inaccurate information and will also not be able to cast an effective provisional ballot because the erroneous registration information drops them from the registration list so election officials will be unable to count the provisional ballot. Finally, H.R. 3295 does not require full compliance with federal voting rights laws and offers no check on states to make sure they are in compliance. It is essential to election reform that as states contemplate how they will spend federal money there is a means to ensure that they are currently in compliance with existing federal voting rights laws. H.R. 3295 offers no such provision. This bill by simply allowing states to self certify their compliance, and only in area of ``administering election systems'' (which narrows where states need to be in compliance), offers no real protection for taxpayers as states spend millions of federal dollars without having to be in compliance with federal law. True election reform must have in place a mechanism that requires the Attorney General to check for compliance prior to releasing funds for electoral reform. These provisions make clear, and other elements of the legislation confirm, that H.R. 3295, cannot meet the concerns and problems that voters continue to face at polling places around the country. Going part of the way, as H.R. 3295 would have us do, and turning back the clock on important current voting rights laws, is not an acceptable legislative compromise, but a compromise of principle of the right to vote. True election reform must safeguard existing law and then move to solve the problems I urge members to vote ``no.''

Mr. JACKSON of Illinois

Mr. JACKSON of Illinois. Mr. Chairman, I rise in strong opposition to the amendment of the gentleman from Florida. The gentleman's amendment proposes to take $60 million in funding from Title I of the Ryan White CARE Act and transfer it to the AIDS Drug Assistance Program. While both of these are critical components of the Ryan White CARE Act, we cannot support moving money from one critical program in the CARE Act to another critical program. Our nation's response to the HIV/ AIDS crisis must be comprehensive and integrated. While the ADAP program needs additional funds, these additional resources should not come from money approved for other bipartisan-supported CARE Act programs, such as Title I, which provides relief to metropolitan areas--like New York and Chicago--that are disproportionately affected by HIV/AIDS. Title I funds support comprehensive HIV health care and treatment and essential services for low-income uninsured and underserved persons living with HIV/AIDS. Title I provides funds to the most impacted cities for the delivery of critical medical and support service and medications. We cannot take medical services away to provide the increase for ADAP. Funding for the needed increase for ADAP must come from another source, not a medical and support service delivery program.

Mr. JACKSON of Illinois

Mr. JACKSON of Illinois. Mr. Speaker, I just want to congratulate the gentleman for his noble efforts on behalf of the American people. My wife and my 18-month old daughter are enormously grateful for the gentleman's efforts, and I am sure all of us who have family members, as much as Members of Congress travel, are very greatful for the gentleman's efforts. But for the millions of Americans whom many of us have never met and still do not know, in the gentleman from Washington (Mr. Inslee) they have the kind of leadership on the floor of the Congress that is thinking about them and that is going to make a significant difference.

Mr. JACKSON of Illinois. I thank the gentleman from Washington for yielding, and I thank the gentlewoman for her critical and important comments. We think there is a lot of hysteria out here. The hysteria is the illusion of security without ensuring that 100 percent of the bags underneath these aircraft have been inspected. But the gentleman raised the question also about the stimulus package and what a real stimulus package in light of today's threats should be. Why not critical investments in the real needs of the American people? Before the events of September 11, Jane Garvey, the head of the Federal Aviation Commission, said that we needed 10 new airports the size of O'Hare Airport. That is 10 new airports that could be in every region in the country. The construction of these 10 new facilities alone would put hundreds of thousands of Americans back to work, regardless of the next series of events that this war might bring, even to our own shores. How about high-speed rail? Every State in the Union could benefit from a stimulus package that included high-speed rail, including the steel industry, including the locomotive industry, including Amtrak, including putting millions of Americans to work laying the track for high-speed rail? Regardless of the next series of events that this war might bring to our own shores, high-speed rail is a project that would continue, and is not subject to the fear factor associated with these events. Before the events of September 11, we needed $322 billion to repair the critical infrastructure of our schools. How many carpenters and how many painters and how many teachers would we put to work if we had an economic stimulus package that was a downpayment on rebuilding the critical infrastructure for the 53 million kids in the 85,000 public schools in the 15,000 school districts across our country? Health care for all Americans: Economic stimulus. But beyond aviation security, I know there are people in the country who think Congress is obsessed with airplanes these days, we need train security. We need security in our subways. The economic stimulus package must make every American feel more secure in going about their daily lives. So I thank the gentleman for beginning this process by arguing about aviation security. But the broader economic stimulus should not be something that, because of fear, the Congress comes back in several more weeks or several more months needing an additional economic stimulus package, simply because we did not invest in the critical needs of the American people, which would be a long-term investment and stimulus package that would keep millions of Americans working even through this great war on terrorism.

Mr. JACKSON of Illinois. Mr. Speaker, if the gentleman will continue to yield, the operative word here is ``confidence,'' and the American people have to have confidence in our security; they must have confidence in our economy. At the end of every aviation disaster, the National Transportation Safety Board starts looking for the black box. Let me show my colleagues just how irrational the present approach to security is. We are going to end up with a National Transportation Safety Board looking for a black box and a strong door, because that is going to be all that is left is a black box and a strong door if we do not pass the gentleman from Washington's bill in the event that a device, a foreign device is allowed to get into the cargo area of these aircraft. That is a fact. What does the gentleman's legislation have to do with the economic stimulus? It has a lot to do with the economic stimulus. Because confidence in the aviation industry, which is confidence in tourism, which is confidence in the ability to stay in a hotel, which every cab driver in America needs, which every tourism board needs, which every convention center needs, is a factor in why the economy needs to be stimulated in the first place, because four aircraft were slammed, essentially, into buildings, and one in Pennsylvania. So unless we are prepared to provide the American people with the security that they want, after this Congress votes and passes the stimulus package, if there is another disaster in the aviation industry, the Congress will have wasted the economic stimulus package, because the American people are not going to leave their homes, they are not going to travel, they are not going to go on vacations because of the failure to provide security. So the gentleman's bill is the centerpiece of any economic security package or stimulus package for our Nation's economy.

Mr. JACKSON of Illinois. I thank the gentleman from Washington for yielding. I just want to respond to the ideological point raised by my good friend the gentleman from Texas (Mr. Doggett). One of the beautiful things about this period in American history is we have beyond our State flags, beyond our corporate banners, beyond where we work, where we were elected, where we are from and the tragedy of September 11 for this moment in American history has forced all of us to seek security in that which makes us one, the ideals that we believe in fundamentally as Americans. We have turned to our national flag. We have turned to our national government, and even our President is experiencing unparalleled approval ratings because the American people are rallying behind the concept that we can defend ourselves as a Nation from these attacks. So when the gentleman from Texas (Mr. Doggett) raises the questions about petty ideology keeping us from moving forward on some of these critical issues, that is no small claim that the Member is advancing. In order to provide inspection of every bag, in order to provide security of equal high quality at every airport, in order to ensure that there is an armed marshal on every flight, we would have to expand the Federal Government on the issue of security so that every single American can have some security, but no one in this Congress wants to be accused of being part of any effort that would expand the Federal Government. All of the American people at this hour on their cars, hanging out of their windows, hanging out of their buildings are waving the American flag because they expect their Federal Government for which they pay enormous taxes to be able to provide a response that provides ultimately then the kind of security they seek. For ideological reasons, we want the airlines to be responsible for security. We want the local States to be responsible for airports. We want the local National Guard to be responsible. We do not want to support a big Federal Government aviation bill that might force every bag to be inspected on an aircraft because that would be a Federal mandate. And who is going to pay for it? We are caught up in an ideological argument at the moment. The American people are expecting us as their Congress and as their representatives to do something about that. I thank the gentleman for yielding.

Mr. JACKSON of Illinois. Let me begin by thanking and congratulating the distinguished gentleman from Washington (Mr. Inslee) and the gentleman from Ohio (Mr. Strickland) for this very timely special order. I cannot think of an issue that is more pertinent and more relevant that the Congress of the United States should be addressing than airline and aviation security. I came to Congress fighting for aviation issues when I was first elected in 1995. We have been fighting to expand capacity before the events of September 11. I used to always joke whenever I would fly with my brother Jonathan about flying coach. Jonathan would always argue that flying coach was so much cheaper than flying first class, and he would almost always quip, ``The coach section of the aircraft gets there at the same time that the first class section does.'' So now we have 100 percent security from the first class section to coach. That is looking at the aircraft from the nose of the aircraft to its tail section. But underneath the aircraft, while every American is now being subjected to an unusual and necessary amount of security and screening, the gentleman from Ohio indicated that only about 5 percent of baggage underneath the aircraft is being presently inspected. Not only do we support in this critical piece of legislation the 100 percent screening of all baggage on aircraft, in the interim we should allow manual inspection of all baggage on aircraft. If it requires more National Guardsmen, more national U.S. Marshals, more Air Marshals, the failure to inspect from one end of the aircraft to the other, including those bags up underneath the aircraft, at a 100 percent rate is the false illusion of security while we fly in our country. To not inspect baggage, to give the illusion of security in the cabin but not underneath the aircraft is called Pan Am 103, and we are supposed to learn from our mistakes, having witnessed the tragic events of Pan Am 103. So in the interim, I would argue that yes, we must pass this piece of critical legislation immediately. I talked with the ranking member of the committee, the gentleman from Illinois (Mr. Lipinski), who indicated that we may be 3 to 4 years away from being able to fully inspect every bag underneath the aircraft. But we are in a war against terrorism at this hour, with almost guaranteed reprisals. Even the FBI Director at 4:30 this afternoon said we can expect some reprisals from the al Qaeda organization in the not so distant future. But we need not repeat the mistakes of the past. I would go one step further, because I fly like all Members of this institution. The Congress of the United States should not only be responsible for security above the aircraft but also security beneath the aircraft. The airline industry does not believe that it is feasible to inspect all aircraft, all baggage underneath the aircraft, except for here is the problem: If there is one domestic incident on an aircraft as a result of a device making it past our security screening measures, we are going to stop flying the planes anyway. They are going to bring them all to a halt again, with further erosion of confidence by the American people in the aviation system, and that is ultimately what this Congress must seek to avoid. We must save the lives of Americans by ensuring that from the nose of this aircraft to the rear of this aircraft, there is a complete inspection of that vehicle and all baggage that is allowed on it. Presently the only inspection devices that we have are above the ground, that is, through the cabin security. I would make the argument that until we are able to provide 100 percent inspection and security for all aircraft in this Nation that the baggage compartment of these aircraft ought to be sealed and no baggage should be allowed on these aircraft unless it is physically inspected by marshals. That means that only baggage that we can carry above the aircraft must be carried on board and inspected at the point of entry of the aircraft, which we presently do. And until the Federal Government can guarantee that every bag on that aircraft is inspected, we should not allow baggage in those compartments whatsoever, regardless of what the airline industry says, regardless of what the airlines themselves are saying, until there is 100 percent inspection of this baggage. If it is 3 to 4 years away from the technology because we cannot produce the machines fast enough, then we are 3 to 4 years away from being able to have two bags per customer on these airplanes. I am for the traveling public, but I am also for the public interest above private interest. I thank the gentleman.

Mr. JACKSON of Illinois

Mr. JACKSON of Illinois. Mr. Speaker, I've been in Congress for nearly six years. Never have I been so torn over a vote. Even though I am going to vote for this legislation, I have deep concerns and grave reservations about it. First, it is too narrow. We need a comprehensive anti-terrorist approach. This legislation does not represent such a comprehensive strategy and war against terrorism around the world. It only pertains to the terrorism associated with the events surrounding September 11, 2001. This legislation looks backward, not forward. This legislation fails to develop a strategy to combat and prevent potential or future acts of terrorism. Second, and paradoxically, it is too broad. The literal language of this legislation can be read as broadly as executive interpreters want to read it, which gives the President awesome and undefined power. As written, the resolution could be interpreted, if read literally, to give the President the authority to deploy or use our armed forces domestically. Earlier today I voted to support $40 billion in supplemental spending for a fight against terrorism and public social spending for New York's recovery. Tonight I would have preferred to support a vote to reaffirm the authority of the President under the War Powers Act, which gives the President all the authority he currently needs to fight terrorism and protect the citizens of the United States. That would give all Americans more time--60 or 90 days--to investigate more and learn more about all of the issues and facts involved on September 11. I support the President's commitment to investigate, capture, and punish all of those responsible for this horrible and inhumane deed. This was not only an assault on our nation and our people, but an indiscriminate attack on civilian life. Thus, I also support and approve removing the sanctuaries and support systems of terrorists. I urge all governments to unite to investigate this crime, to prevent its recurrence, and to being to justice those who are responsible. I support doing whatever is constitutionally lawful and necessary to isolate those nations who sponsor and harbor terrorists. But I am not voting to give the President new authority--in the words of Deputy Secretary of Defense Paul D. Wolfowitz--to ``end states who sponsor terrorism.'' We need to operate within traditional constitutional constraints. I would have preferred to have voted to reaffirm the War Powers Act because it, after 60 or 90 days of the President launching a military response to these terrorist attacks, the President had returned with more information on who did this and how it happened, I might be prepared to vote $100 billion to fight terrorism. And if, after 60 or 90 days, President Bush returned with a request and a rationale for new and expanded presidential authority, I may have been willing to vote to grant him that as well-but not now. In private meetings all day yesterday, Members raised serious questions and concerns that troubled me greatly. Some Members noted the similarity to the open-endedness of this resolution to the Tonkin Gulf Resolution. We know the consequences of the vote, which was based on insufficient information and, in that instance we now know, deception. Senators Wayne Morse of Oregon and Ernest Gruening of Alaska voted ``No'' on August 7, 1964, and they are seen as wise and heroic today. I am not voting ``Yes'' on September 14, 2001, for an open-ended Tonkin Gulf-type Resolution. I do not want a repeat of the Johnson administration--which used it to provide dubious legal cover for a massive escalation of an unwinnable war in Vietnam-- for either a similar domestic or foreign over-reach against terrorism. I'm not willing to give President Bush carte blanche authority to fight terrorism. We need to agree to fight it together within traditional constitutional boundaries. Another Member asked, ``By voting for this resolution, are we granting the President new authority to conduct extra-legal and extra- constitutional assassinations?'' If we are, we are becoming like the terrorists we despise. What does killing people already willing to die really accomplish? It will only create martyrs and multiply terrorists. We must not become like those who believe that the end justifies any means in the struggle against terrorism. That is the logic of the terrorists. We must respond to this outage, but we must not validate this logic. We must respond to this outrage effectively-by eliminating the underlying grievances that is motivating the terrorism in the first place. What we must do is affirm the principles that came under attack on September 11--respect for innocent life and international law. That is how to rob the terrorists of victory. Recently President Bush said the United States ``will make no distinction between the terrorists who committed these acts and those who harbored them.'' But we must make distinctions. In the words of Human Rights Watch, we must distinguish ``between the guilty and the innocent; between those who commit atrocities and those who may simply share their religious beliefs, ethnicity, or national origin. People committed to justice and law and human rights must never descend to the level of the perpetrators of such acts. That is the most important distinction of all.'' Another Member said we needed to show national unity. A vote to reaffirm the War Powers Act would have given us the national unity we need--and would have given us 60 days to investigate this matter more fully and see more clearly what we are actually looking at. Another Member said she had been in Congress for 19 years, but never had been asked to make a decision and cast a vote with so little information. In light of one Senator's breach of trust, the administration is now withholding information from Members of Congress. We are voting huge sums of money and granting virtual unlimited authority to the President with little actual information. Other Members expressed a concern that if we are going to conduct a ``comprehensive and sustained war against terrorism that eliminates terrorists and terrorism root and branch'' that we must give Americans an understanding of why there are so many people in the world who hate us. We must explore and learn why people are willing to give their very lives in suicidal missions; and why their supporters dance and celebrate in the streets when these terrorists inhumanely succeed to destroying American lives and our symbols of economic power and military might. I have raised the concern that we need more time to explain to the American people that this is a new kind of protracted war. This is not the kind of war former President Bush fought in the Persian Gulf that ended in just over a month. This is a war that will be fought in public places on our shores and within our borders--in our crowded public buildings, in our subways, in our airports, in our train stations, in our colleges and universities, at our sporting events, and possibly with chemical and biological weapons. The War Powers Act would have allowed us at least 60 to 90 days to better understand and inform the American people about the nature of the war that today they are so anxious to fight. I too am deeply hurt, distraught, in mourning, fearful, and angry. But we must resist the temptation to allow ourselves to become like those we today so despise. Terrorist violence must be halted, but the pain behind their rage must be heard and addressed. Human beings become terrorists in an ocean of despair. Therefore, any comprehensive approach to ending terrorism must address the waves of pain and injustice of the ocean. The most effective anti-terrorist campaign is one that replaces the despair and hopelessness of the terrorist's supporters with a policy that brings dignity, respect, and justice to every person, neighborhood, community, and nation in the world.

Mr. JACKSON of Illinois

Mr. JACKSON of Illinois. Mr. Speaker, today we pray for the innocent victims who suffered and died in yesterday's heinous and horrific terrorist attacks. We offer our sympathy and condolences. We hurt alongside the families and friends who lost loved ones in hijacked planes, the World Trade Center, the Pentagon, and rescue workers who sacrificed themselves to save others. We praised the heroic efforts of the police, the firefighters, the emergency medical teams and volunteers who responded to this tragedy. Today Americans stand united, a unity that we must trust will strengthen our President with wisdom and good judgment. All Americans should continue to do what we can to help: to give blood, to volunteer, to pray for peace in the world. America's determination and indomitable spirit must not allow terrorists and terrorism to weaken our commitment to an open and democratic society. We vow to fully, thoroughly, and comprehensively investigate those who are responsible for this dastardly and deadly deed. We are sure we must respond with strength and in a comprehensive and proportionate manner. Yesterday was September 11, day 9-11, and we were sent an emergency wake-up call. It was not dialed accidentally, it was a deliberate message. Terrorists struck at our greatest symbols of financial power and military might. We have a profound opportunity not only to investigate who and how this was done, but also, more importantly, why it was done. We may not be able to answer that question today. The pain, the hurt, the suffering, and the anger are too great. But maybe in our tomorrows, when we have the answer to why, then we will be better able to work toward the day when such tragedies will never happen again.

Mr. JACKSON of Illinois

Mr. JACKSON of Illinois. Mr. Speaker, I am proud to recognize Dr. Emiel Hamberlin, who is being inducted into the National Teachers Hall of Fame today. Today's children need a balance of guidance and knowledge, and I am glad to see that Chicago's Public schools and its students are being fortified by teachers like Dr. Hamberlin. Dr. Hamberlin has been teaching biology and Horticulture Environmental Sciences for the past 36 years in Chicago public schools. His honors and awards include City of Chicago Teacher of the Year, the Kohl Family Foundation International Educator, Who's Who Among Black Americans, and the Golden Apple Foundation Academy Fellowship, and he has been recognized as one of Newsweek Magazine's America's 100 Heroes. Dr. Hamberlin has applied a practical application of his science curriculum that includes educating his pupils in small business and small business enterprises. Through the Ornamental Horticulture Program, he and his students developed a landscaping club where student were paid for producing public and private landscapes throughout the city. He and his students have also developed an award winning Urban Ecology Sanctuary where they studied, maintained and housed various animals, numerous plant life, and unique ecosystems all within an enclosed courtyard on their high school campus. Dr. Hamberlin has shown that classrooms can be stimulating experiences for all types of students, and they can have first hand experience at life's lessons. Dr. Hamberlin has demonstrated what a great impact a teacher can have on our children, and we are glad to have him teaching the children of Chicago. Dr. Hamberlin, thank you for your years of dedication to the most noble of services, and may you continue to influence and inspire students for many years to come.

Mr. JACKSON of Illinois

Mr. JACKSON of Illinois. Mr. President, I have an objection.

Mr. JACKSON of Illinois. Yes, sir, I have signed it.

Mr. JACKSON of Illinois. Mr. President, I am objecting to the idea that votes in Florida were not counted; and it is a sad day in America, Mr. President, when we cannot find a Senator to sign these objections. New Democratic Senators will not sign the objection, Mr. President. I object.