Jerrold Nadler

Mr. NADLER

Mr. NADLER. Mr. Speaker, I think we all agree that the Constitution's protection of property rights must be preserved. Let us be clear. This bill has nothing do with the Kelo decision, though they keep mentioning that. It has nothing to do with eminent domain procedures. Separate issue. The Constitution provides for just compensation when Government takes property for a public purpose; and when it does it up front, that is eminent domain. On that much there is general agreement. This bill is something different, something radically and dangerously different. It goes far outside the bounds of the Constitution to reward big developers and polluters whenever local government tries to preserve the quality of life in our communities by controlling the spread of huge landfills or sprawling subdivisions or factory farms or adult bookstores. It does it primarily by making a number of changes to the substance of law. I will not even talk about, I will allude to it, but I am not going to talk in detail about the forum shopping that this brings into Federal court. By the substantive changes in the law, the bill attempts to accomplish a partial legislative override of the so-called property as a whole rule in takings litigation. The bill states that taking claims shall be decided with reference to each subdivided lot regardless of ownership, ``if such lot is taxed or is otherwise treated and recognized as an individual property unit by State, territory or the District of Columbia.'' Regulations, local zoning regulations, wetlands regulations, commonly restrictive elements of some proportion of a property, while allowing development of other portions. Under the well-established property as a whole rule, courts evaluating tax's claims, that is, evaluating a claim that some regulation is in fact a taking of private property without due process of law and therefore unconstitutional, must consider the impact of the regulation on the owner's entire property. Courts routinely apply this rule in situations where the property has been subdivided to separate tax lots or otherwise legally subdivided on the grounds that this type of property subdivision is irrelevant to the taking's analysis. This bill would override this established application of the property as a whole rule. For example, if a developer owned property subdivided into 100 lots, two of which were classified as wetlands, the bill would force taxpayers to pay the developer to prevent the development of those two lots, notwithstanding that he is able to build on 98 percent of the land. The Constitution and our historic traditions have never guaranteed the ability to build on every square inch of property. This modification of the property as a whole rule would represent a substantial change in takings doctrine and would force taxpayers to pay someone for any reduction in the inability to use any inch of property under any zoning regulation. So if you own a single family home in a suburb and you do not want to see every inch built right up to your lot line, have your Congressman vote for this bill, if you do want to see that, rather. If you want to protect the ability of your town council to say we want zoning on half-acre lots, then you cannot support this bill. Because any town council that said you have to have at least a half acre or quarter acre or whatever is saying you cannot build on every inch and the public must pay for that. The public will never pay for that. It is much too expensive, which means you cannot have any zoning regulations, you cannot have any limitation on density, and you cannot have any environmental regulations to prevent building on wetlands or other environmentally sensitive areas. That is what this bill does. The bill also provides that in a case alleging a deprivation of substantive due process, the Government actions ``shall be judges to whether it is arbitrary, capricious and abuse of discretion or otherwise not in accordance with law.'' Prior to the New Deal, prior to 1937, in the so-called Lochner era, the due process clause provided the constitutional basis for a very activist Supreme Court decision striking down a wide variety of regulations: Minimum wage laws are unconstitutional, maximum hour laws are unconstitutional, factory safety laws are unconstitutional. Why? Because it was a violation of substantive due process. This bill language seeks to revive this Lochner doctrine by promoting the revival of an expansive reading of the due process clause. Since the 1930s, the courts have applied the due process clause with considerable deference toward the elected branch of the government. Republicans talk all the time about activist courts, we do not want them, they say deference to the elected branch of the government, except here. Reflecting this approach, Justice Samuel Alito, while sitting as a Judge of the Court of Appeals for the 3rd Circuit, rejected a due process challenge to a municipal ordinance on the basis that the Government action violates substantive due process only when it ``shocks the conscience.'' This bill would replace this relatively deferential, widely accepted standard with a wider standard focusing on whether the Government acted arbitrarily, capriciously or with an abuse of discretion. In addition, the bill states the Government action should be judged based on whether it is otherwise not in accordance with law. This language would convert every single legal dispute over the application of garden variety zoning regulations, garden variety maximum hour, minimum wage, factory safety, environmental, whatever laws into a constitutional due process issue. This bill goes so far to destroy the ability of communities to control the spread of huge landfills or of sprawling subdivisions or factory farms or adult bookstores. You want an adult bookstore on every block, and the town council cannot stop it, vote for this bill. A developer can circumvent local government and normal State court consideration, drag our local governments into Federal Court and demand payment every time our constituents want to preserve their health or quality of life. The threat of Federal court litigation is real and troubling. One representative of the National Association of Homebuilders said this bill would be a hammer to the head of every local official. Is that what we should be doing? Congress and the Federal Courts will now become a super national zoning board? Whatever danger to the environment this legislation may pose, it is green in at least one respect. It is an outstanding example of recycling, taking us all back to those memorable days of Newt Gingrich's Contract on America, where even the Republican Congress rejected this kind of legislation in those days. Later versions of that effort, which have been called kinder and gentler by at least one legal scholar, focused on procedural issues, a euphemism for the kind of forum shopping in this bill. This bill is much less kind and less gentle. It greatly expands the definition of a taking. It would require the Government to provide compensation in the kinds of cases I spoke of a few minutes ago where the Constitution does not require compensation. It would allow developers to game the system by dividing their lots to squeeze money out of our communities. Should we have to pay someone off to keep them from poisoning our drinking water? Should we have to pay people off if we want to control suburban sprawl? Is it a taking if we make them pay for some or all of the costs of the new roads, sewer lines, water lines and schools that will be needed when they are done? This bill says ``yes''. Should local taxpayers have to pay a developer whenever any conditions are imposed on a developer before allowing them to move forward? This bill says ``yes''. My Republican colleagues on the Judiciary Committee often rail against ``trail lawyers'' who engage in forum shopping. Now this bill, proposed by those same Members, would write forum shopping into the law to benefit one large group against everybody else: large real estate developers against every member of local government and every local constituent who cares about their community. Let us have no doubt that this is a big developers' bill. One of the majority's witnesses at the hearing we had on this bill last year was Frank Kottschade, a major local developer. Another was an attorney who made an impassioned plea for small property owners. But it turned out that the bio from his firm's Web site said that he represented such small property owners as Wal-Mart, the Rumpke landfill in a major expansion effort, Home Depot and General Electric. That is who this bill is for. And let me clear up some confusion. Many Members of this House were outraged by the Supreme Court's Kelo decision, which dealt with the use of eminent domain to promote economic development. This bill, I will repeat, has nothing to do with Kelo, nothing to do with eminent domain. This bill has to do with destroying the ability of our local communities to enforce the zoning regulations, environmental protection, environmental regulation and any kind of limitation on any kind of development. If that is what you want to do, if you want the Federal Government to come in and be the master of zoning and overrule all local regulations so that local government may as well go out of business, because Congress knows best, and in fact not even Congress, the courts know best, then vote for this bill.

Mr. NADLER. Mr. Speaker, I thank the gentleman for yielding. Mr. Speaker, first of all, we are told that this is a terrible situation because under current law, given Supreme Court decisions, you have to go to State court; you cannot adjudicate your Federal constitutional rights in Federal court. You can always appeal any final court State decision. If you claim that the Supreme Court of Tennessee has violated your Federal constitutional rights, you can always appeal that into the Federal courts. So no one is disputing that. So that is a bogus claim. Secondly, of course, the bill does not say directly that the local government must pay anybody who is denied any opportunity to do anything; but it has that effect because, for example, the law does not carve out an exception from the fifth amendment. The fifth amendment applies to everything, but the courts have long held that if you have a 100-acre plot of land and 2 acres, let us say, are wetlands that you cannot develop and you can develop 98 of 100 acres, if you look at the property as a whole and there is no taking there. What this bill says is if they say 2 acres are wetlands and you cannot build on it or after half an acre or 35 square feet, the local government must pay for that; and for that matter if the local government says that you can only build on half acre lots, you cannot fill up every inch, then you are not using every inch of your land, you are prevented, and that is a taking of property. Basic law always has been understood that as long as you can substantially use your land, not every inch of it, not to the extent, that is not a taking. This says it is a taking. So if New York City zoning says the you can only build 75 stories, you cannot build 300 stories, under this bill, the local government would have to pay for the value of the 225 stories that you cannot build. This is way beyond takings law, and that destroys all local regulations. That is why this bill should be defeated.

Mr. NADLER

Mr. NADLER. Mr. Speaker, due to official business in New York related to the anniversary of the September 11, 2001 terrorist attacks, I was unable to travel to Washington, DC. As a result, I missed votes on September 6 and September 7, 2006. I ask that the Record reflect that had I been able to, I would have voted ``aye'' on rollcall vote No. 427, regarding the Abraham Lincoln Commemorative Coin Act; ``aye'' on rollcall vote No. 428, Recognizing the life of Preston Robert Tisch; ``aye'' on rollcall vote No. 429, Congratulating Spelman College on the occasion of its 125th anniversary; ``aye'' on rollcall vote No. 430, providing for consideration of the Horse Protection Act; ``no'' on rollcall vote No. 431, an amendment offered by Mr. Goodlatte; ``no'' on rollcall vote No. 432, an amendment offered by Mr. King of lowa; ``aye'' on rollcall vote No. 433, final passage of the Horse Protection Act; ``aye'' on rollcall vote No. 434, A Motion to Instruct Conferees on the National Department of Defense Authorization Act of 2007; and ``aye'' on rollcall vote No. 435, closing portions of the National Defense Authorization Act of 2007 Conference Report.

Mr. NADLER

Mr. NADLER. Mr. Speaker, I rise today to honor the Penn South Program for Seniors for an outstanding 20 years of service to the naturally occurring retirement community in and around the Penn South cooperative on Manhattan's West Side. When President John F. Kennedy dedicated Penn South in 1962, he said, ``It is the task of every generation to build a road for the next generation. This housing development . . . can provide a better life for the people who come after us, if we meet our responsibilities.'' Indeed a subsequent generation of Manhattanites has benefited from the vision of the eariest residents of Penn South. Many of the original members of the cooperative still live in Penn South, and many of the current residents are senior citizens. The Penn South Program for Senior continues to provide dedicated support to those people who helped make Chelsea the vibrant neighborhood it is today. Originally built to house members of the International Ladies Garment Workers Union and their families, Penn South sparked a renaissance on Manhattan's West Side when ``urban renewal'' was a phrase used only among city planners. As growing demand for affordable housing prompted Penn South to open itself to the public, the cooperative became a thriving community that truly transformed the neighborhood. Widely regarded as one of the best-run cooperatives in the state of New York, Penn South has made contributions beyond its own community. During New York City's budget crisis in the 1970s, residents of Penn South scraped together enough money to prepay their property taxes and help the City through that difficult time. The Penn South Program for Seniors was our Nation's first Naturally Occurring Retirement Community (NORC) program, and has become a nexus of senior services. Since 1986, it has provided care management, entitlement screening and advocacy, homecare coordination, health services, counseling, support groups, referral services, recreation, educational programs, volunteer opportunities, a social adult day care program, and an intergenerational garden for both seniors and children. The program also links West Side residents with community services such as Meals on Wheels, home care, and transportation. Later, because Penn South was selected as a training site for psychiatric fellows, two medical centers have opened on-site geriatric practices and residents have access to free psychiatric consultations. Most importantly, the program allows seniors to continue living in their homes as part of the Penn South community. This chance is vital to hundreds of long-time residents, especially at a time when financial concerns and high real estate costs are forcing many of New York City's seniors out of their apartments. Again, I commend the Penn South Program for Seniors for its tireless support for the generation of New Yorkers who brought Chelsea back to life.

Mr. NADLER

Mr. NADLER. Mr. Speaker, it is altogether fitting that we adopt the resolution commemorating the fifth anniversary of the terrorist attacks against the United States and specifically against the World Trade Center in my district on September 11, 2001. The attacks were unprovoked, dastardly and a notice to us all that we are not, at our choosing, at war. Since that day, this Congress has taken many actions in response, some of which I agreed with, some of which I did not. I resent the Republican leadership's inclusion in this resolution of references to controversial legislation, as if to imply that any patriotic American who was appalled at the attacks on our country and who believes we must take resolute actions to defend ourselves must approve of all this legislation, and anyone who doesn't is either unpatriotic or foolish. It may be, though I do not believe it so, that all this legislation was wise and appropriate. But that was a highly debatable proposition and should not be in this resolution. The resolution quite correctly ``honors the heroic actions of first responders, law enforcement personnel, State and local officials, volunteers and others, who aided the innocent victims and bravely risked their own lives and health following the September 11, 2001, attacks.'' Unfortunately, unless Congress acts quickly, future generations will regard this resolution as the culmination of 5 years of hypocrisy and betrayal. While we praised the first responders, the Federal Government has betrayed their trust by first lying to them and causing them to work in conditions that destroyed the health of many and risked the lives of thousands. It has conducted a coverup that continues to this day. It has denied the reality of the resulting illnesses and has provided almost no help to assist with the medical and other costs imposed on thousands of first responders. It is not just the first responders. Many resident school children and people who worked or lived near Ground Zero are still suffering from the devastating environmental effects of the attacks. In the days following the attacks, former EPA Administrator Christine Todd Whitman repeatedly declared the air safe to breathe. A Federal judge found that ``Whitman's deliberate and misleading statements to the press, where she reassured the public that the air was safe to breathe around Lower Manhattan and Brooklyn, and there would be no health risk for those returning to those areas, shocked the conscience.'' The EPA Inspector General confirmed the EPA's wrongdoing and reported 3 years ago that the White House had instructed EPA to downplay air quality concerns. For this, Whitman and anyone at the White House who was involved ought to be criminally prosecuted, and I have demanded an independent counsel to look into this. Now thousands of people are sick and some have died from World Trade Center contamination because of the actions of the Federal Government in telling them to work and live in contaminated environments. Studies come out every year showing that most of the people exposed to 9/11 dust and debris continue to suffer adverse health effects. On September 5, 2006, Mount Sinai Medical Center released a study that found that 70 percent of the first responders suffer lung problems because of their work at Ground Zero. Information collected about the health effects on residents, people who work in the area, and school children, show similar patterns. This resolution before us today claims to honor the heroes of 9/11, but that is just sheer hypocrisy if we do not at the least provide health care for these people as they struggle with the effects of the attacks and of the betrayal by their own government. As Americans, let us resolve that just as we showed exemplary valor and compassion in the aftermath of the terrorist attacks, we should do the same for those who continue to suffer the health effects of living and working in a toxic environment. Abraham Lincoln said that it was our job, our duty, to care for him who shall have borne the battle, and this we must do. We ought to provide comprehensive health care benefits for all those who are suffering. I suggest the easiest way to do this would be to extend Medicare benefits to those with 9/11-related illness who were exposed to World Trade Center dust. I have introduced such a bill and urge my colleagues to support it and pass it without delay. As we mark this fifth anniversary, we still are not safe. We are not safer than we were on September 11, 2001, as this resolution claims. The President and this Congress refused to do what we must to make us safe. We are not securing all the nuclear material in the former Soviet Union before it is smuggled to al Qaeda to make nuclear bombs. We are not screening all of the 12 million shipping containers coming into our ports to make sure that they do not contain nuclear or biological or chemical weapons. We are not hardening our nuclear and chemical plants from sabotage that could kill tens of thousands of Americans. We can and must do better. Now, the specific resolution before us ought to pass because we cannot let this occasion go unmarked. But because of the cynical manipulation of the rules of the House two months before an election, the Republican leadership is using the memories of my murdered constituents to try to score political points. I find this offensive, and I for one will not fall for it. I will not vote against the victims and heroes of 9/11 simply because the leadership distilled the resolution with highly charged political rhetoric. This type of resolution is not the way I would have chosen to honor 9/11, a day marked by unquestionable national unity. Nonetheless, out of the respect for the families of the victims, and on behalf of all Americans, I urge my colleagues to see past the obviously political paragraphs inserted into the resolution and come together to support passage of the resolution that should really only be known for honoring a tragic day in American history. In order that this resolution not go down in history as hypocritical, I urge my colleagues to join, finally, in helping the victims of 9/11, the victims of our government's inaction and betrayal after 9/11. My thoughts and prayers, as ever, are with the families and friends of those we lost.

Mr. NADLER

Mr. NADLER. Mr. Speaker, I thank the gentleman for yielding. This bill recognizes the importance of establishing a national memorial at the World Trade Center site as the highest honor the Nation can confer to commemorate and mourn the attacks on this Nation on September 11, 2001, and also the first attack, on February 26, 1993; and supports the efforts of the World Trade Center Memorial Foundation to build a permanent memorial at the World Trade Center site. By supporting a national memorial commemorating the attacks on the World Trade Center, we can help establish a place where all Americans can remember and learn from the tragedy of 9/11. Thousands of people from across the country and around the world visit the Trade Center site every day, and millions more will come when the memorial opens, hopefully in 2009. This bill gives us, Members of the people's House, the chance to voice our support for this substantial effort. Mr. Speaker, on September 11, 2001, I was here in Washington when I saw on television the attack on the World Trade Center, and I immediately went home to be with my constituents, my friends, and family in New York. Normally, when I go to New York from Washington by train, I look out the window and usually the first thing I would see about 20 miles away from New York would be the World Trade Center, the Twin Towers, and when I saw them, I knew I was almost home. That awful day, I didn't see the twin towers. I didn't see the World Trade Center. I saw only a huge plume of smoke stretching all the way down to the New Jersey shore, and it felt like my guts were being torn out. This was a bill I wish were not needed, but we need to remember. We need to remember the charred debris, the families torn apart, the ash that made New York look like a nuclear winter, and the smell of the smoke, like death itself. We need to remember the attack on our country and the motives behind it. We also need to remember the heroism of those who rushed into burning buildings to help and the selflessness of those who from all around the country came to volunteer their services, those who donated supplies and who lined up to donate their blood all around this country, and even in foreign countries. It is our collective responsibility never to forget what happened and to honor the lives lost by building this memorial. That is what this resolution, this bill is about. There is a broad and deep consensus that has emerged in the United States that this is a sacred site that must not be forgotten and must be honored and that this site requires the highest form of national recognition. The memorial's design competition became the largest in history, with designs submitted by over 5,200 participants, more than 5,000 submissions from 63 nations and 49 of these United States. On January 6, 2004, a distinguished 13-member jury announced the winning memorial design, ``Reflecting Absence,'' by architect Michael Arad and landscape architect Peter Walker. Work on the memorial began less than a month ago on August 17. The World Trade Center Memorial Foundation has been established to manage the fund-raising and construction processes. The Memorial Foundation has a private fund-raising goal of $300 million, of which more than $133 million has already been raised from more than 20,000 donors from every State and from 11 foreign countries. I would like to encourage those who want to help or learn more to visit the Web site of the World Trade Center Memorial Foundation. I would like to thank the entire New York delegation to this House, who joined me as original cosponsors and who have united behind the effort to establish a national memorial on the World Trade Center site in my district, as well as the additional cosponsors of this legislation. I would also like to acknowledge the positive role played by the Governor of New York, George Pataki, and New York City Mayor Michael Bloomberg, who have both lent their support. I also have to thank Ranking Member Rahall for his efforts in getting this bill out of committee, and also our distinguished minority whip, Steny Hoyer, for his help in getting the bill to the floor of the House. The establishment of a national memorial permanently commemorating the events at the World Trade Center on 9/11 will serve as a testament to the heroism of the people of New York and the people of the United States of America. It will help us all as a Nation to remember the indomitable strength of our citizens and the sacrifices made by so many, and it will serve as a continuing reminder of our ongoing obligation to provide proper care and assistance to the victims of the 9/11 attack, not only the families of those who died on 9/11 but also the first responders, the rescue and recovery workers who came from all over the country and the residents of the surrounding area who continue to suffer the health effects of that tragic day and its aftermath. I congratulate the members of the Memorial Foundation on their efforts raising funds thus far and pledge our continued support as they begin their work on this enormous task, and I urge all my colleagues to vote for this resolution.

Mr. NADLER

Mr. NADLER. If the gentleman will yield for a question, under this bill, if a law enforcement officer had completed evacuating people from someplace and saw a few guns lying around in a house, and didn't know who they belonged to but wanted to take them up so that looters who might come by later couldn't take them and present a menace to the public, would this prevent him from doing that? Would this subject him to a lawsuit later personally if it turned out that the owner of the house came back and said, why did he take my legally owned guns?

Mr. NADLER. Answer the question, please.

Mr. NADLER. Reclaiming my time, I am not talking about after arresting looters. Law enforcement people see guns lying around in a house. They don't know who they belong to.

Mr. NADLER. Let me say this. There are lots of reasons why law enforcement may be going by: to check on the safety of people, to look into a house to see if anybody is there lying wounded or whatever. They see guns lying around. No one is there, thank God. They are all out, but they see guns lying around. Under this bill, if they pick up those guns, lest looters come and find them later and it later turns out that those guns legally belonged to the homeowner, when that homeowner returned, he could sue the individual privately. And, therefore, no cop in his right mind would pick up those guns. He would have to leave it for the looters. This bill, as I said before, is insane.

Mr. NADLER. I thank the gentlewoman for yielding. Madam Speaker, I rise in opposition to H.R. 5013, the so-called Disaster Recovery Personal Protection Act of 2006. There is really only one word to describe this bill: Insane. The proper title of this bill should be The Right to Sue Cops and National Guardsmen Act of 2006. The premise of the bill is that following Hurricane Katrina, and possibility other disasters, law enforcement personnel illegally seized guns from people who had legal permits to own a gun. In some cases, they may have been seized because law enforcement did not want guns inside a public shelter. In other cases, people evacuated and left guns behind, and the police collected these guns so they would not fall into the hands of looters. The NRA claimed this was illegal and sued the New Orleans Police Department. The New Orleans Police Department stated it had to determine who were the rightful owners of the guns before they could return them. I believe the lawsuit has since been settled, and the guns are being returned to their rightful owners. Yet, today, we are considering a bill that would ostensibly solve this so-called problem of guns being illegally seized following a disaster. Since the lawsuit arises from this issue that has been resolved, I do not see why the legislation is necessary. But how does this bill solve the supposed problem? It actually creates a private right of action for gun owners to sue personally cops, National Guardsmen, FBI officers, and other law enforcement personnel who are simply carrying out their jobs following a disaster or emergency situation. The bill says that no Federal employer officer, including the military, National Guardsmen, or any person connected to the Federal Government, such as members of police departments, local police departments, that receive Federal funding, or anyone acting in support of relief to a major disaster or emergency, may seize any firearm which is allowed under Federal or local law. If they do seize such a gun, it would allow a gun owner to sue a cop or National Guardsman personally, not the government, sue the cop personally, even if the officer was carrying out his official duties. And the gun owner can even recover attorneys fees. Aside from the fact that the entire premise of the bill is ridiculous, there are a number of serious problems with the legislation. First, the presumption is all in favor of the gun owner and not the cop. There is no requirement that the gun owner prove the gun is legal at the time it is seized. So, if a cop sees someone with a gun, he has no evidence of his right to have a gun, maybe the cop suspects he was a looter, if the cop takes the gun, he is personally liable if it turns out he had a legal right to it later. Also, if a cop finds a gun on the floor or in a store or in a home and takes it to prevent it from getting into the hands of looters, that cop can now be sued. So let us leave the guns lying around for the looters to pick up and shoot people with. Second, if this bill passes, Federal response officials and aid workers, such as the Red Cross, would have no say where guns are carried. They could not prohibit guns in public shelters where kids are present, nor could they prevent armed gangs and vigilantes from showing up and wandering the streets with guns. Private volunteers with guns can show up in any disaster situation, and law enforcement would have no say. Third, the bill applies to a ``major disaster or emergency,'' which includes a terrorist attack. So if the New York Police Department responds at the World Trade Center, or the military responds to an attack at the Pentagon, and there is a group of guys with guns, law enforcement cannot disarm them without risking being sued. Why would we want to tie the hands of the military responding to a terrorist attack? This bill has a chilling effect on law enforcement responding to a major disaster or to a terrorist attack. If law enforcement illegally seizes firearms, or seizes firearms that turn out to be legally owned, even though they have no reason to believe they are at the time, aggrieved parties already have the right to sue, as was the case when the NRA sued the NOPD. I should restate that. If law enforcement illegally seizes firearms, aggrieved parties today can sue, as was the case when the NRA sued the New Orleans Police Department. The only reason for this bill, to give an additional right, seems to be vindictive, to force some poor police officer or National Guardsman doing his job into bankruptcy. If there really is a problem, this legislation is not the way to fix it. It is too broad, it is poorly drafted, and it will create more dangers in times of major disasters. That is why the International Brotherhood of Police Officers and the Violence Policy Center have expressed opposition to this bill. I also have a letter in opposition from the Major Cities Chiefs Association, which represent 57 major law enforcement organizations. I urge my colleagues to oppose the bill. Major Cities Chiefs, Office of the President, June 19, 2006. Re H.R. 5013 and S. 2599, the ``Disaster Recovery Personal Protection Act of 2006.'' United States Congress, Washington, DC. Dear Legislator: The Major Cities Chiefs (MCC) Association represents fifty-seven (57) major law enforcement organizations in the United States and Canada who are located in a metropolitan area of more than 1.5 million population and employ more than 1,000 law enforcement officers. All our officers are actively engaged in providing law enforcement, public safety and homeland security to the citizens of our communities every day. We are writing in opposition to H.R. 5013 and S. 2599, the ``Disaster Recovery Personal Protection Act of 2006.'' As law enforcement professionals, we understand and acknowledge the Constitutional limitations on police power to confiscate personal property. These limitations, however, must be balanced with the need to maintain public safety and security during emergency situations. We are concerned that the bill would void local laws that guide police actions regarding firearms in emergency situations. We also feel that police should be allowed to take into safekeeping any dangerous weapons and/or explosives they find abandoned in a building or home. Additionally, as law enforcement executives, we feel if the President, a governor and/or mayor declares a state of emergency for a devastated area after a disaster, these officials should also be allowed to temporarily include provisions for a weapon-free zone during the area's recovery. For example, law enforcement may need to ensure that evacuation sites are free of weapons. Sister law enforcement agencies responding to a disaster must also be free to carry their firearms into another jurisdiction and help maintain law and order until the devastated area recovers. Finally, we are concerned that the bill creates a new right to file lawsuits against police who take abandoned guns for safekeeping in an emergency or create emergency secure areas free from weapons. The bill should not create a new right to file lawsuits against law enforcement seeking to safeguard the public in emergency situations. Should you need additional information, please feel free to contact MCC's General Counsel Craig Ferrell for further clarification of our position. Sincerely, Harold L. Hurtt, MCC President.

Mr. NADLER. I yield to the gentleman from Louisiana.

Mr. NADLER

Mr. NADLER. Mr. Speaker, I rise today to call attention to a worthy organization, one committed to special children and their families. The Moses and Aaron Foundation's significant and enduring efforts under the direction of the president, Rabbi Yaacov Kaploun, and executive vice president, Yehuda Kaploun, deserve the highest praise, as do the philanthropists who have given of themselves to fulfill its mission. The Moses and Aaron Foundation Special Fund for Children is an all volunteer organization and is dedicated to assisting children with disabilities and their families with a wide range of programs including social, physical, and financial, as well as counseling and guidance. It also provides scholarship funding to educational institutions, collects, purchases, and distributes clothing for children in need and remembers them with presents at holiday time or when hospitalized. In cooperation with Bally Total Fitness Centers, the Moses and Aaron Foundation has been able to establish physical fitness and therapy centers. The foundation has arranged for sound and musical equipment in other institutions as well to help improve the conditions of disabled children. On Saturday night, August 5, 2006, at the Sullivan County Community College in Loch Sheldrake, NY, the Moses and Aaron Foundation will sponsor its 10th Summer ``Chazak--Strength'' concert honoring and paying tribute to special and outstanding children. This concert is presented under the honorary chairmanship of Nobel Laureate Elie Wiesel and is produced by STB Jewish Music Productions. The guests of honor will be the special and outstanding children, many of whom will perform with the entertainers on stage. More than 40 organizations and schools serving the needs of physically and mentally disabled children will be represented at this event. The Chazak Concert and the Moses and Aaron Foundation's other programs demonstrate the caring and compassionate concern for the quality and dignity of life of others and merit the appreciation of all those who have benefited from its services. The Moses and Aaron Foundation was founded in memory of Rabbi Dr. Maurice I. Hecht and Aaron Kaploun, both of whom led lives of exemplary community service. It is in this sentiment of communal dedication that the Moses and Aaron Foundation has devoted itself to serving the needs of a unique group in the community. I urge my colleagues to join me in honoring the Moses and Aaron Foundation, an organization which exemplifies the generosity of spirit in American society.

Mr. NADLER

Mr. NADLER. Mr. Speaker, I rise today to join my colleagues in honoring a truly distinguished public servant. A man without whom our jobs would be infinitely more difficult. Tim Friedman, for decades a fixture of the House Democratic Cloakroom, will take his well earned retirement. Most people outside this building know nothing of the Cloakrooms. The staff there provide information to Members on the program for the day, the timing of votes, and myriad other details that go into the operation of this institution. As we all try to juggle the demands of committee meetings, visits from constituents, meetings with people concerning legislation, and floor debates and votes, the Cloakroom is a vital resource in making sure that everything runs smoothly. In addition to being helpful, the staff of the Cloakroom have always provided a friendly and congenial environment even when the workload seems unmanageable, the pressure mounts, and tempers get short. Tim has mastered the arcane science of the House. His voluminous knowledge, his institutional memory, his up-to-the-minute understanding of what is going on have more than once saved this Member, and many of my colleagues, from losing track of the proceedings. Tim has always managed the job with good cheer and good humor, even when, perhaps, the circumstances might have called for a much different response. My colleagues and I will greatly miss Tim Friedman, although we wish him well as he leaves this House. Tim, you will always have a home here, and, should you ever get tired of relaxing and enjoying life, you are always welcome back. Congratulations and best of luck to you.

Mr. NADLER

Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, we are now down to the heart of the matter. This entire spectacle is aimed at a possible decision by one Court that the directed recitation by school children under the instruction of their teacher of the phrase ``under God'' may violate the first amendment rights of those children. Let's be clear. Nowhere in the United States is the use of the phrase ``under God'' prohibited in the public schools. In the only two cases in which the Court ruled that the directed recitation of the phrase ``under God'' violated the establishment clause, the Supreme Court vacated one ruling, and has issued a stay preventing the second ruling from interfering with the recitation of the Pledge. For this we need to take a chain saw to the Constitution? For this we need to endanger the religious liberty of religious minorities like the Jehovah's Witnesses, who were thrown out of school because their religion barred them from saying the Pledge? Only the Supreme Court protected their rights in violence against Jehovah's Witnesses that ensued. This bill would not only prevent the Supreme Court from ruling on the constitutionality of directing school children to recite the phrase ``under God,'' it would also overturn the 1943 Supreme Court Jehovah's Witnesses case and allow the punishment or expulsion of school children for refusing to recite a pledge that violates their religion or their conscience. We may be endowed, Mr. Chairman, by our Creator with certain unalienable rights, but people can, and routinely do, violate and take away those rights. That is why we need a Supreme Court, to protect these rights even when political majorities will not. Supporters of this bill have candidly said they disagree with the Supreme Court, and that, in their opinion, the Supreme Court has gone beyond its powers, and that we, in effect, should overrule it and prevent them from ruling in these cases. We have heard this before. Look at the notorious ``Southern Manifesto'' against the Supreme Court decision in the Brown v. Board of Education 50 years ago: ``We regard the decisions of the Supreme Court in the school cases as a clear abuse of judicial power. It climaxes a trend in the Federal judiciary undertaking to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the States and the people.'' That is what we hear whenever people disagree with the Supreme Court, in the school desegregation cases and now. And this amendment makes the point of the bill explicit. The sponsors are afraid of what the Supreme Court may do in a pending case on this subject that may come before them and therefore explicitly strip the Federal courts of jurisdiction even over a pending case. This is Congress saying to a specific plaintiff, we do not approve of your claim of a violation of your constitutional right; so we are going to shut the courthouse door in your face. This is a dangerous enterprise. I respect my friend's concerns and his right to disagree with the courts, but we must not destroy our Constitution and the one independent bulwark of our liberty. I urge defeat of this bill. Mr. Chairman, I yield for the purpose of making a unanimous consent request to the distinguished ranking member of the Judiciary Committee, Mr. Conyers. (Mr. CONYERS asked and was given permission to revise and extend his remarks.)

Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, I really hate to be an ``I told you so,'' but when, in 2003, we considered legislation to strip the Federal courts of jurisdiction, in that case to hear cases challenging the Defense of Marriage Act, I warned that there would be no end to it. In fact, when we first marked up this bill, I asked my friend, the chairman of the Constitution Subcommittee, whether there would be other court-stripping bills. He assured me that this and the marriage court- stripping bill were the only ones ``so far.'' As we know, he was being, as always, truthful. Our former colleague Bob Barr, the author of the Defense of Marriage Act, whose legislation Congress was purporting to protect in that case, said, no thanks. He wrote: ``This bill will needlessly set a dangerous precedent for future Congresses that might want to protect unconstitutional legislation from judicial review. During my time in Congress, I saw many bills introduced that would violate the takings clause, the second amendment, the 10th amendment, and many other constitutional protections. The fundamental protections afforded by the Constitution would be rendered meaningless if others followed the path set by this bill.'' Bob Barr was right. Today it is the turn of the religious minorities. Once upon a time in this country a student could be expelled from school for refusing to cite the Pledge because it was against his or her religion. In 1943, the Supreme Court in West Virginia Board of Education v. Barnette held that children, in that case Jehovah's Witnesses, had a first amendment right not to be compelled to swear an oath or recite a pledge in violation of their religious beliefs. This legislation would, of course, strip those families of the right to go to court and to defend their religious liberty. Schools would be able to expel children for acting according to the dictates of their religious faith, and Congress will have slammed the courthouse door in their faces. As dangerous as this legislation is, even for an election season, it is part of a more general attack on our system of government which includes an independent judiciary whose job it is to interpret the Constitution even if those decisions are unpopular. It is their job to protect individual rights, even if the exercise of those rights in given instances are unpopular. Sometimes we do not like what the court says. I don't like that the Supreme Court struck down part of the Violence Against Women Act, or that they struck down part of the Gun Free Safe Schools Zones Act, or that they are misapplying, in my opinion, the commerce clause and the 11th amendment in order to gut some of our civil rights laws. I really didn't like it that Republican-appointed justices traversed, perverted justice in order to put someone in the White House who got more than half a million votes less than the other candidate who really won the election. I don't hear my colleagues on the other side screaming about judicial activism by unelected judges in these cases. As wrong as I believe the current Supreme Court to be on many issues, I understand that we cannot maintain our system of government and especially our Bill of Rights if the independent judiciary cannot enforce those rights, even if the majority doesn't like it. Again, I will refer to the Soviet Stalinist Constitution of 1936, which had many rights in it, freedom of speech, freedom of association, freedom of the press, freedom of religious and antireligious propaganda, as they quaintly put it. But, of course, it wasn't worth the paper it was written on because they had no judicial enforcement of it, and if you tried to bring a lawsuit to enforce your right, they shot you before they brought you to court. Any constitutional right without the ability to enforce it in court is no right. This House appears infected with hostility toward the rule of law. This bill is a perfect example. Even more egregious is the way it has reached the floor. The Judiciary Committee twice voted against reporting this bill to the House. The ``no'' vote was bipartisan. Now the Republican majority is abusing its power to bring it to the floor anyway. Neither the Parliamentarian nor the Congressional Research Service has been able to find any other case like this. They report, ``We found one instance of a bill, a joint resolution, between the 100th Congress and the current Congress, in which a committee specifically voted not to report a measure that was later considered by the House.'' That measure was a 1996 agriculture bill that was rejected in committee and later folded into a reconciliation bill. Now the Republican majority exceeds even that arrogance. We are asked to vote on a bill that guts our system of government and guts the protection of our individual rights when the committee tasked with the consideration of this bill rejected it. It must be an election year. To return to Justice Jackson and the flag salute case, he observed that, and I quote because it is very apposite here, ``The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote. They depend on the outcome of no elections.'' But now some would strip the courts of any ability to protect these individual rights against a temporarily intolerant majority. As to the complaints about unelected judges, I would refer my colleagues back to their high school civics textbooks. We have an independent judiciary precisely to rule against the wishes of the majority, especially when it comes to the rights of unpopular minorities. That is our system of government and it is a good one and we should protect it. As Alexander Hamilton said in Federalist Number 78, ``The complete independence of the court of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all reservations of particular rights or privileges would amount to nothing.'' Where would this bill leave religious liberty? The Republicans tell us State courts can protect those rights. What would this mean? It would mean that your rights might be protected in one State, but not in another. I thought the 14th amendment to our Constitution settled that issue. One of the reasons we have a Supreme Court is so that the Federal Constitution means the same thing in New York as in California or Mississippi or Minnesota. This country must be one country, not 50 separate countries. We are really playing with fire here. Do you really hate unpopular religious minorities so much that you are willing to destroy the first amendment? I urge my conservative colleagues especially to shape up and act like conservatives for once. We live in a free society that protects unpopular minorities, even if the majority hates them or hates the expression of their opinion. If someone doesn't want to recite the Pledge of Allegiance or doesn't feel conscientiously able to recite the words ``under God,'' that is their privilege. Our Constitution protects it, our civil liberties protect it, this country should protect it, and I urge the defeat of this bill. Mr. Chairman, I reserve the balance of my time.

Mr. NADLER. Mr. Chairman, I yield 7 minutes to the distinguished gentleman from Virginia (Mr. Scott).

Mr. NADLER. Mr. Chairman, I yield 2\1/2\ minutes to the distinguished gentleman from California (Mr. Rohrabacher).

Mr. NADLER. Mr. Chairman, I will yield the gentleman 30 seconds, and yield for an answer to how he would have prevented, under this bill, all the States from negating the Supreme Court's Brown v. Board of Education ruling.

Mr. NADLER. Mr. Chairman, I now yield 3 minutes to the distinguished ranking member of the Judiciary Committee, the gentleman from Michigan (Mr. Conyers).

Mr. NADLER. We have the right, but I do not believe we have the right, given the fact that the Bill of Rights postdates the grant of the jurisdiction-setting authority in the Constitution, I do not think we have the right to take away from the Supreme Court the ability to protect constitutional rights. Mr. Chairman, I yield 5 seconds to the gentleman from Virginia (Mr. Scott).

Mr. NADLER. Mr. Chairman, how much time do I have left?

Mr. NADLER. To overrule the Supreme Court? Certainly we do not have that.

Mr. NADLER. I yield myself 10 seconds so I can yield to the gentleman from Florida.

Mr. NADLER

Mr. NADLER. Mr. Speaker, my train was delayed, and as a result, I missed three votes on July 17, 2006. I ask that the Record reflect that had I been able to, I would have voted ``aye'' on rollcall vote No. 375, regarding the Trail of Tears National Historic Trail; ``aye'' on rollcall vote No. 376, regarding Federal contributions to the Washington Metropolitan Area Transit Authority; and ``aye'' on rollcall vote No. 377, the Federal Judiciary Emergency Tolling Act.