Hank Johnson

Mr. JOHNSON of Georgia

Mr. JOHNSON of Georgia. Mr. Chairman, I demand a recorded vote.

Mr. JOHNSON of Georgia. Mr. Chair, I yield to the gentlewoman from Texas (Ms. Jackson Lee).

Mr. JOHNSON of Georgia. Mr. Chairman, as the designee of the gentleman from Michigan (Mr. Conyers), I offer an amendment.

Mr. JOHNSON of Georgia. Mr. Chair, the Conyers amendment would exempt from H.R. 4768, the Separation of Powers Restoration Act of 2016, regulations promulgated by the Environmental Protection Agency that protect drinking water from lead and copper contamination. The Conyers amendment does not address a hypothetical concern. The recent lead-contaminated water crisis that occurred in Flint, Michigan, is only the latest in a history of cases of contaminated drinking water. Without question, the Flint crisis was a preventable public health disaster. The lead contamination occurred because an unelected and unaccountable emergency manager decided to switch the city's water source to the Flint River without there being the benefit of proper corrosion control. As a result, corrosive water leached highly toxic lead from residents' water pipes, exposing thousands of children to lead, which, in turn, can cause permanent developmental damage. While much of the blame for the Flint water crisis rests with unelected bureaucrats who prioritized saving money over saving lives, the presence of lead in drinking water is not unique to Flint. The drinking water of potentially millions of Americans may be contaminated by lead. In fact, just last month, elevated lead levels were detected in the drinking water supplied to the Cannon House Office Building right here on Capitol Hill. It is a commonsense amendment, and it is common sense that urgent rulemakings, such as the EPA's proposed revisions to its Lead and Copper Rule, must not be impeded or delayed by measures such as H.R. 4768. Even before the Flint water crisis, the Agency had begun the process of updating this Rule, which was originally promulgated in 1991 after years of analysis. Rather than hastening this rulemaking, however, H.R. 4768 would have the opposite effect. The bill would empower well-funded business interests to seek the judicial review of any regulation they opposed by a generalist, politically unaccountable court that lacks the requisite scientific or technical knowledge. The court could then make its own, independent determination based on its nonexpert views and limited information as to whether the Agency's proposed regulation is warranted. The Conyers amendment simply preserves longstanding legal doctrine in cases involving the review of regulations that are designed to prevent the contamination of drinking water by lead and copper. It is critical that Americans have access to safe drinking water, and we must not hinder the ability of Federal agencies, such as the EPA, to prevent future lead contamination crises, as occurred in Flint. Federal judges, who are constitutionally insulated from political accountability, should not have the power to second-guess the Agency's experts concerning the appropriateness of highly technical regulations that are crucial to protecting the health and safety of millions of Americans. Accordingly, I urge my colleagues to support the Conyers amendment. Mr. Chair, I yield back the balance of my time.

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

Mr. JOHNSON of Georgia. Mr. Chairman, I rise in support of my amendment, which exempts from the bill rules issued by agencies pursuant to their express statutory authority. H.R. 4768 is a misguided and dangerous bill that simply does not understand courts must always give effect to clearly expressed congressional intent under current law. H.R. 4768 would dismantle decades of judicial practice and establish generalist courts as super-regulators with sweeping authority over the outcome, and perhaps even substance, of agency rulemaking even where Congress expressly grants authority for agency action. At the subcommittee hearing on the bill, the majority's own witness, Professor Jack Beermann, testified that the bill ``may go too far'' by disabling ``reviewing courts from taking into account the views of an administering agency on questions of statutory interpretation.'' Professor Beermann expressed additional concerns that H.R. 4768 may frustrate Congress' intent for highly technical areas in which Congress expects an agency to apply its expertise. Furthermore, as Professor Beermann testified, in areas where Congress expressly grants authority for an agency to undertake an action, such as defining a term, H.R. 4768 would represent a ``fundamental shift in authority'' while making it difficult for Congress to allow deference where appropriate. The late-Justice Scalia held a similar view on judicial deference. Writing for the majority in the City of Arlington, Texas v. FCC, Justice Scalia argued that requiring a de novo review of every agency rule without any standards to guide this review would result in an ``open-ended hunt for congressional intent,'' rendering the binding effect of agency rules unpredictable and eviscerating ``the whole stabilizing purpose of Chevron. The excessive agency power that the dissent fears would be replaced by chaos.'' In recognition of these concerns, my amendment would exempt from the bill agency rules promulgated in response to a clear and unequivocal mandate from Congress. Without my amendment and notwithstanding the endearing title of the bill, H.R. 4768 would create countervailing separation of powers concerns by casting aside Congress' role in shaping agency rules in favor of judicial activism. As a group of our Nation's leading administrative law experts have observed, H.R. 4768 is disruptive to the careful equilibrium that the full body of administrative law doctrine seeks to achieve. Administrative law is not perfect, but this bill tilts too strongly in favor of judicial power at the expense of the other two branches. In other words, the likely outcome of enacting this unwise proposal would be more power in the hands of a single branch of government that is unelected and unaccountable to the people. This policy concern is the very foundation of the Chevron doctrine. As the Court noted in Chevron, judges ``are not experts in the field, and are not part of either political branch of the Government.'' H.R. 4768 is not a new idea, but it is a bad idea. Congress considered and rejected a proposal such as this over three decades ago. It wasn't a good idea then, and it is a worse idea now. I reserve the balance of my time.

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

Mr. JOHNSON of Georgia. Mr. Chair, I demand a recorded vote.

Mr. JOHNSON of Georgia. Mr. Chairman, I demand a recorded vote.

Mr. JOHNSON of Georgia. Mr. Chairman, I ask unanimous consent that the request for a recorded vote on amendment No. 2 be withdrawn to the end that the amendment stand disposed of by voice vote. That was the amendment that was originally styled the Jackson Lee amendment No. 2, which I was asked to present by designation.

Mr. JOHNSON of Georgia. Mr. Chairman, this amendment would exempt from the bill any rule issued by the Food and Drug Administration that pertains to consumer safety. This amendment is necessary to safeguard the public health and safety of American consumers from the bill's burdensome regulatory framework, which would significantly delay or prevent critical rules that protect public health and safety from being issued by the FDA. Just recently, the FDA finally implemented the bipartisan FDA Food Safety Modernization Act, which was passed by Congress and signed into law by President Obama in 2011, representing the most substantial reform to food safety in over 70 years. According to the Centers for Disease Control, one in six Americans gets sick every year from foodborne diseases. That is 48 million people yearly. Of these 48 million people, 3,000 every year die from diseases that are largely preventable. Under authority and clear regulatory framework achieved by the Food Safety Modernization Act, the FDA's finalized rules will prevent foodborne illnesses and outbreaks associated with contaminated produce among other important protections. In its letter opposing H.R. 4768, the Coalition for Sensible Safeguards, which represents more than 150 labor, food, and health safety and environmental public interest groups, notes that H.R. 4768 will lead to ``regulatory paralysis,'' particularly for rules related to the food safety sector. Without this amendment, rules protecting the public's food supply at best would be delayed for months or even years, causing substantial confusion and delay in all agency rulemaking. At worst, the bill gives generalist courts unbridled discretion to make substantive determinations concerning agencies' statutory authority. I ask my colleagues to support this amendment. Mr. Chairman, I reserve the balance of my time.

Mr. JOHNSON of Georgia

Mr. JOHNSON of Georgia. Lastly, I would point out that there is a strongly worded veto threat by the President about this legislation should it ever find its way to the Senate and to the President's desk. The President points out that this legislation is not in the public interest and that it would add needless complexity and delay to the judicial review of regulatory actions. For those reasons, among other things, he has issued a veto threat. So this is a piece of legislation that is a messaging piece. My friends on the other side of the aisle know that it is not going anywhere, but it is promoting their message, which is deregulation. Despite all of the regulation and legislation needed to address pertinent issues that the American people are demanding action on right now--the Zika virus, Puerto Rico, gun violence, and gun reform legislation--there are so many other things that we could and should be working on, but instead we are enthralled here with these messaging bills that are not going anywhere. Mr. Chairman, I yield back the balance of my time.

Mr. JOHNSON of Georgia. Mr. Chairman, I yield to the gentlewoman from Texas (Ms. Jackson Lee).

Mr. JOHNSON of Georgia. Mr. Chairman, I yield 3 minutes to the gentleman from Michigan (Mr. Conyers).

Mr. JOHNSON of Georgia. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, in sum, it is indeed ironic that the so-called Separation of Powers Restoration Act actually raises separation of powers concerns by yielding legislative power over to the judicial branch. This is, in part, why there are so many alliances of labor organizations, consumer organizations, environmental action organizations, and others that strongly oppose this legislation. I include in the Record a July 11, 2016, letter from Consumers Union opposing this legislation, along with a letter from the Natural Resources Defense Council opposing this legislation. ConsumersUnion, July 11, 2016. Dear Representative: ConsumersUnion, the policy and advocacy division of Consumer Reports, urges you to oppose H.R. 4768 when it comes to the floor. Although titled the ``Separation of Powers Restoration Act,'' we are concerned that the bill would have the opposite effect, upending the well-developed constitutional balance between the legislative, executive, and judicial branches. The bill could severely impair effective and well-considered regulatory agency enforcement of critical safety, health, environmental, and market protections on which consumers depend. Courts giving appropriate deference to reasonable agency interpretations of their statutes, as reflected in Chevron U.S.A., Inc., v. NRDC, 467 U.S. 837 (1984), is a well-settled approach to promote both sound and efficient agency enforcement and effective judicial review. This approach has legal roots going back decades, even to the earliest days of our nation. The courts have full judicial power to review agency legal interpretations. The Chevron doctrine embodies a judicial recognition, based on experience, that courts do not need to exercise this judicial power de novo on each and every question of law that comes before them. The courts are in no way precluded from doing so when that is warranted. The agency must give a reasoned explanation for its judgment, but Chevron says the court should not simply substitute its judgment for the agency's. The Chevron doctrine recognizes that, as a general matter, an agency that deals with a statute day in and day out, year in and year out--applying the dedicated efforts and sustained attention of agency personnel with specialized subject matter expertise in all relevant disciplines, and with input from stakeholders and members of the public, received and considered in open rulemakings--develops valuable insight into the law it is entrusted with administering. Chevron recognizes that this insight generally warrants the respect and deference of the reviewing courts of general jurisdiction, which have no such resources, dedicated personnel, specialized expertise, or sustained attention over time. Again, in situations where the court has sufficient basis to conclude that deference is not warranted, it has full authority to not defer. Likewise, if Congress determines that the agency has acted in a manner inconsistent with congressional intent--or if Congress decides to clarify or even change its intent in light of some agency action-- Congress can amend the statute and provide a clearer directive. But Congress cannot realistically be expected to clearly address in advance every conceivable contingency that may arise in the administration and enforcement of the statutes it enacts. The agencies that are specifically tasked with administering and enforcing those statutes are in the best position to ensure that the law functions effectively. Indeed, that has traditionally been regarded as their foremost responsibility--to help the President take care that the laws be faithfully executed. In City of Arlington, Tex. v. F.C.C., 133 S. Ct. 1863, 1874 (2013), the Supreme Court starkly described the alternative to Chevron: ``Thirteen Courts of Appeals applying a totality- of-the-circumstances test would render the binding effect of agency rules unpredictable and destroy the whole stabilizing purpose of Chevron. The excessive agency power that the dissent fears would be replaced by chaos.'' In addition to injecting this unpredictability into every agency decision, and increasing the complexity of every rulemaking, the change proposed by this legislation would add needless new burdens to our already overworked courts, impeding their important work as well. In sum, this legislation is unnecessary, could do severe damage to the proper functioning of our government, and could severely weaken a wide range of fundamental protections on which consumers rely. For these reasons, we urge you to oppose this bill. Respectfully, George P. Slover, Senior Policy Counsel, ConsumersUnion.

Mr. JOHNSON of Georgia. Mr. Chair, I yield myself such time as I may consume. Judicial review of final agency action is a hallmark of administrative law and is critical to ensuring that agency action does not harm or adversely affect the public. But as the Supreme Court held in Chevron USA, Inc. v. Natural Resources Defense Council, Inc., reviewing courts may only invalidate an agency action when it violates a constitutional provision or when an agency unreasonably exceeds its statutory authority as clearly expressed by Congress. For the past 30 years, this seminal decision has required deference to the substantive expertise and political accountability of Federal agencies. As the Court explained in Chevron: ``Federal judges--who have no constituency--have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public event are not judicial ones: `Our Constitution vests such responsibilities in the political branches.''' H.R. 4768, the Separation of Powers Restoration Act of 2016, would eliminate this longstanding tradition of judicial deference to agencies' interpretation of statutes and rules by requiring courts to review agency action on a de novo basis. This misguided legislation is not the majority's first attempt to gum-up the rulemaking process through enhanced judicial review. Since the 112th Congress, a number of deregulatory bills we have considered, such as H.R. 185, the Regulatory Accountability Act, would require generalist courts to supplant the expertise and political accountability of agencies in the rulemaking process with their own judgments. Compare this approach with other deregulatory bills passed by this Congress that would greatly diminish judicial review of deregulatory actions by dramatically shortening the statute of limitations for judicial review, sometimes to just 45 days. In other words, the majority wants to have it both ways. When it benefits corporate interests, Republican legislation heightens scrutiny of agency rulemaking, like this act does, threatening to impose years of delay and untold costs on taxpayers. When it benefits the public or our environment, Republican legislation slams the courthouse door shut through sweeping restrictions on the court's ability to protect public health or the environment. These proposals are transparently the design of special interest fat cats to minimize their exposure to legal accountability. H.R. 4768 is more of the same. At a minimum, this bill will delay and possibly derail the ability of agencies to safeguard public health and safety. Without any constraints on judicial review, the bill will also incentivize judicial activism by allowing a reviewing court to substitute its own policy preferences for those of the agency, which Congress has specifically entrusted with rulemaking authority. In other words, this bill resolves a perceived imbalance between the branches by granting immense authority to the judicial branch so that it may act as a super regulator through judicial fiat. In a letter opposing this bill, a group of the Nation's leading administrative law professors underscored this point, arguing that the bill is motivated by policy disagreements, not actual concerns with judicial deference. I strongly oppose H.R. 4768 and urge my colleagues to do the same. Mr. Chairman, I reserve the balance of my time.

Mr. JOHNSON of Georgia. Mr. Chair, I yield such time as he may consume to the gentleman from Michigan (Mr. Conyers).

Mr. JOHNSON of Georgia. Mr. Chairman, America is facing so many important issues that need to be addressed that this Congress refuses to address, and so it tenders do-nothing bills like this that are going absolutely nowhere, not going to pass in the Senate, and if it did, it would not be signed by the President. But still this do-nothing Congress persists in acting in this way. Mr. Chairman, I yield 5 minutes to the gentlewoman from the great State of Texas (Ms. Jackson Lee).

Mr. JOHNSON of Georgia. Mr. Chairman, I yield an additional 2 minutes to the gentlewoman from Texas.

Mr. JOHNSON of Georgia

Mr. JOHNSON of Georgia. Mr. Speaker, my topic today was going to be on the issue of gun violence, mass shootings, the need for Congress to take some action to keep America safe, the fact that 90 percent of the people of this country want Congress to take some action. I was going to speak about that today. But I would be remiss, as a Black man in America, to pass up the opportunity to comment about life as a Black man in America, in an urban setting, particularly when it comes to police community relations, you see, because we live in a gun culture, and nowadays, everybody has a gun. Some folks have a culture of growing up shooting, hunting. Nothing wrong with that. Take the kids to the gun show, the family, on a Saturday afternoon. And at the gun show there is a bunch of unlicensed gun dealers there selling weapons of mass destruction to any and everybody. That is a part of the culture because everybody wants a gun. Well, it is time for universal background checks. That is a simple piece of legislation, closing the gun show loophole, which that loophole is bigger than the Goodyear Blimp traveling sideways. That loophole is so big that you could fit the Goodyear Blimp through it sideways, and it is worth nothing because unlicensed gun dealers can sell guns to any and everybody. Any and everybody can purchase a gun over the Internet, no background check required. We need to close that gun show loophole by passing legislation that enforces the notion that there will be universal background checks. I wanted to talk about that today, and I still think that is important. But even if we have universal background checks in this country, there is still a problem for Black folks who decide to arm themselves. I mean, we had the case of Philando Castile in Falcon Heights, Minnesota, yesterday, pulled over for a busted taillight. Here is a working man in the car with his girlfriend and her 4-year-old daughter, and he is armed, as everyone else in America is. But he is a Black man riding in the streets of a city in America, and so he must not be allowed to have that gun or, at least, if he has one, everybody is in such fear that they develop a trigger finger. And when he reaches for his license, then he gets blasted four times and his life is snuffed out. That is what happens to Black folks in America. Now we find out that the man had a valid license to carry that firearm. In many States now, due to what the NRA lobby has done, you don't even need a license to carry the firearm in your car. So the man was acting lawfully. He gets blasted. He is no longer with us. The day before, Alton Sterling got a little hustle going on. He is selling CDs at the store, at the corner store. Why shouldn't he be allowed to have a weapon? He has got a weapon in his pocket. Everybody else has got a weapon in their pocket. But no, he is a Black guy, and so we automatically develop a trigger finger when the police approach. Take him down hard, two on one, throwing him all across the car. You saw the video. If the man had wanted to shoot, he would have pulled the gun out much quicker than when they threw him across the car and had him on the ground pinned to the ground. And he ends up getting shot in the back and in the chest. This is life in America. This is our culture of gun violence that this Congress has allowed to manifest itself in this way. We shouldn't have to live like this. Nobody should have to live like this. People walking around afraid of what their neighbor is going to do to them because they know that he has got a mental problem and he should not have a weapon, but he was able to get it over the Internet or through the gun show, unlicensed firearm dealers. So weapons have proliferated into our society. We are now at war, not with a foreign enemy, but with ourselves, with our neighbor. It is not fair to any of us. But I tell you, when America coughs, Black folks have always gotten pneumonia. Nowadays, when America coughs, Black folks die, and it really has to stop, ladies and gentlemen. This is not the way that we should live.

Mr. JOHNSON of Georgia

Mr. JOHNSON of Georgia. Mr. Chairman, I rise in support of the Ellison amendment, which strikes section 506 from the bill, a deeply flawed provision that would restrict the Consumer Financial Protection Bureau's ability to fulfill its statutory mandate to regulate pre- dispute mandatory arbitration clauses in contracts for financial products and services. Over the past several decades, forced arbitration clauses have proliferated in countless consumer, employment, and small-business contracts depriving countless Americans of their right to a jury trial in a court of law while insulating corporations from public accountability. That is why when Congress passed the Dodd-Frank Act in 2010, we explicitly empowered the CFPB to study pre-dispute forced arbitration, and then based on the study's results, ban or limit the practice through regulation. In March 2015, the CFPB issued a seminal report finding that forced arbitration agreements restrict consumers' access to relief in disputes involving financial services and products. As overwhelmingly and methodically documented in this report, the CFPB confirmed what we already knew, that forced arbitration clauses blocked consumers from suing wrongdoers in court individually or in class action lawsuits. Now it is time for the CFPB to ensure that consumers have their day in court by adopting a strong rule banning forced arbitration clauses in contracts for financial services and products. This amendment ensures that the CFPB can do just that. Mr. Chairman, I urge my colleagues to support the Ellison amendment.

Mr. JOHNSON of Georgia

Mr. JOHNSON of Georgia. Mr. Speaker, in my district, the Fourth District of Georgia, the people are tired of gratuitous gun violence. Gun violence and gun deaths have risen by 8 percent over the last decade. Just this Friday night, a 35-year-old female was killed. Her brother had been killed a year earlier--both by gunfire. Saturday night, a 35-year- old male was killed. His brother had been killed a year ago by gunfire--both of them. Families are being torn asunder. No family should have to live under that. A 38-year-old male not far from my office lost his life over a parking space over this past weekend. Gratuitous gun violence has to stop. There is something that Congress can do about it. We need to take action, little, small action like closing the gun show loophole. It makes a big difference. A little action like no fly, no buy makes a big difference. But this Congress, under the control of the NRA, is unable to do so. It is time for change.

Mr. JOHNSON of Georgia

Mr. JOHNSON of Georgia. Mr. Speaker, I submit the following Proclamation: Whereas, since 1955, the DeKalb County branch of the National Association for the Advancement of Colored People has been a worthy instrument for good; and Whereas, the DeKalb County branch of the NAACP is celebrating sixty one years at Green Forest Community Baptist Church in Decatur, Georgia; and Whereas, this organization is a champion for civil rights throughout our county and state, ensuring the rights and liberties of our citizens in Georgia are guaranteed through the U.S. Constitution; and Whereas, its members give of themselves tirelessly and unconditionally to serve our community through endeavors such as voter registration, health walks, mentorships and scholarships; and Whereas, the lives of many in our district are touched by the leadership and service given by the officers and members of the DeKalb County NAACP, our nation and the world is a better place due to their commitment to excellence in all of their endeavors; and Whereas, the U.S. Representative of the Fourth District of Georgia has set aside this day to honor and recognize their outstanding service to our District; now therefore, I, Henry C. ``Hank'' Johnson, Jr. do hereby proclaim April 9, 2016 as DeKalb County NAACP Day in the 4th Congressional District. Proclaimed, this 9th day of April, 2016.

Mr. JOHNSON of Georgia

Mr. JOHNSON of Georgia. Mr. Speaker, I submit the following Proclamation: Whereas, one hundred years ago a virtuous woman of God, Eva Bell Hicks Newsome was born in Reynolds, Taylor County, Georgia on April 16, 1916 to Mr. Ezekiel and Mrs. Mahalia Hicks; and Whereas, she grew up in Reynolds, Georgia and was married to Mr. LB Newsome, Sr. for 76 years; their union has blessed our district and nation with four children and a host of grand, great, great-great and great-great-great grandchildren; and Whereas, this phenomenal Proverbs 31 woman has shared her time and talents as a wife, mother and friend, becoming a Georgia citizen of great worth, a fearless leader and a servant to all by always advancing the lives of others; and Whereas, Mrs. Newsome has been blessed with a long, happy life, devoted to God and credits it all to the Will of God; and Whereas, Mrs. Newsome is celebrating a remarkable milestone; her 100th Birthday. Her family and friends are pausing to acknowledge a woman who has been revered by many as a pillar of her community; and Whereas, the U.S. Representative of the Fourth District of Georgia has set aside this day to honor and extend well wishes to Mrs. Newsome on her birthday and recognize her for an exemplary life that has been an inspiration to all; now therefore, I, Henry C. ``Hank'' Johnson, Jr. do hereby proclaim April 16, 2016 as Mrs. Eva Bell Hicks Newsome Day in the 4th Congressional District of Georgia. Proclaimed, this 16th day of April, 2016.

Mr. JOHNSON of Georgia

Mr. JOHNSON of Georgia. Mr. Speaker, I present the following U.S. Citizen of Distinction: Whereas, our lives have been touched by the life of this extraordinary woman, who has given of herself in order for others to stand; and Whereas, Mrs. Joyce Ann Johnson Jordan's work is present in the lives of the many people she has touched during her time here on earth; a joyful woman who believed in living a life with no regrets. She loved to travel, dance and was a connoisseur of music; and Whereas, this remarkable woman gave of her time, talent and life; she never asked for fame or fortune while uplifting those in need. She just wanted to do what was right; and Whereas, Mrs. Jordan led by working behind the scenes for the causes that mattered to her the most; she loved God, her family and her friends; Mrs. Jordan was a warrior, a matriarch, a woman of great integrity who remained true to the uplifting of her family as a wife, sister and aunt; and Whereas, the U.S. Representative of the Fourth District of Georgia has set aside this day to bestow a Congressional recognition on Mrs. Joyce Ann Johnson Jordan for her leadership, friendship and service to all of the citizens in Georgia and throughout the Nation; a citizen of great worth and so noted distinction; now therefore, I, Henry C. ``Hank'' Johnson, Jr., do hereby attest to the 114th Congress that Mrs. Joyce Ann Johnson Jordan of Georgia is deemed worthy and deserving of this ``Congressional Honor'' Mrs. Joyce Ann Johnson Jordan U.S. Citizen of Distinction in the 4th Congressional District. Proclaimed, this 2nd day of April, 2016.