F. Sensenbrenner

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I yield myself the balance of the time. Mr. Speaker, the John Kerry for President campaign has endorsed national legislation in which ``lawyers who file frivolous cases would face tough, mandatory sanctions, including a `three strikes and you're out' provision that forbids lawyers who file three frivolous cases from bringing another suit for the next 10 years.'' Unfortunately, the Democratic substitute did not listen to what the Kerry campaign said and does not forbid lawyers who file three or more frivolous lawsuits from bringing future lawsuits. The substitute only provides that on three strikes the offending attorney will be referred to a bar association, and no action need be taken by the bar to discipline the lawyer. The base bill, H.R. 4571, on the other hand, currently provides that an attorney who files frivolous lawsuits will be suspended for at least a year and perhaps much longer if the court deems it appropriate. I would ask all Members to reject the Democratic substitute. This quote that I have given from the Kerry for President campaign and those that the gentleman from Florida (Mr. Keller) has quoted of Senator Edwards in Newsweek magazine of last December, the Republican bill has got the type of bipartisan support that is needed to deal with this problem. I would urge a ``no'' vote on the substitute and passage of the base bill.

Mr. SENSENBRENNER. Mr. Speaker, I am prepared to close if the gentleman from Texas will yield back.

Mr. SENSENBRENNER. Mr. Speaker, I rise in opposition to the motion to recommit.

Mr. SENSENBRENNER. Mr. Speaker, on that I demand the yeas and nays.

Mr. SENSENBRENNER. Mr. Speaker, the real outsourcing motion is the one which has been made by the gentlewoman from Connecticut (Ms. DeLauro). If this motion is adopted and this bill is enacted into law, it will cost American jobs. Anytime the cost of doing business in the United States goes up, the number of Americans with jobs will go down. This motion to recommit would increase the cost of doing business in this country and in the process lose American jobs. I do not want to hear anybody who has argued in favor of this motion ever to come back and complain about the outsourcing of American jobs to foreign countries if this motion passes because this is the type of thing that will absolutely do that. The motion to recommit defines the covered entities as those that have substantial business activities in this country, and hurting substantial business in American substantially hurts American workers. Stand up for American workers; vote down this motion to recommit. Stop the outsourcing of jobs by last-minute motions made on the floor with red herring arguments. Vote ``no'' on the motion to recommit. Mr. Speaker, I yield back the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on H.R. 4571.

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman from Florida (Mr. Keller).

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman from Texas (Mr. Smith).

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, on July 22, 2004, the House debated and passed H.R. 3313, the Marriage Protection Act, a bill that would prevent Federal courts from striking down the protection we granted to States in the Defense of Marriage Act. That protection allows states to refuse to recognize same-sex marriage licenses issued in other States if they so choose. In the midst of floor debate on H.R. 3313, the Congressional Research Service issued a memorandum to the minority staff of the House Judiciary Committee, which stated: ``We are not aware of any precedent for a law that would deny the inferior Federal courts original jurisdiction or the Supreme Court of appellate jurisdiction to review the constitutionality of a law of Congress.'' Those on the other side of the aisle made much of this statement, and the statement was widely reported in the press. I would like to set the record straight. The statement that Congress has never passed a law that would deny Federal courts jurisdiction to hear a constitutional claim is false, and the most cursory review of American history shows that. The very first Judiciary Act of 1789 denied the inferior Federal courts original jurisdiction and the Supreme Court appellate jurisdiction to review the constitutionality of literally thousands of Federal statutes under a jurisdictional regime that governed for roughly a century. The Judiciary Committee majority staff pointed out these precedents to the Congressional Research Service in a letter sent on August 4, 2004, asking CRS if its position continued to be that ``there is not `any precedent for a law that would deny the inferior federal courts original jurisdiction or the Supreme Court of appellate jurisdiction to review the constitutionality of a law of Congress.' '' On August 16, the Congressional Research Service responded in a letter that states: ``our earlier memorandum was incorrect.'' (Emphasis added). Let me repeat that. CRS admitted that: ``our earlier memorandum was incorrect.'' CRS goes on to note that it recognizes ``the fact that as written and construed [the Judiciary Act of 1789] did operate to preclude any federal court from deciding the validity of a federal statute from 1789 to 1875.'' I would like to submit for the Record, in addition to my statement, the original erroneous memorandum sent by the Congressional Research Service, the letter to CRS from the majority staff of the committee requesting a clarification of CRS's views, and the response from CRS admitting its error. So let the record be clear. H.R. 3313, the Marriage Protection Act, has ample precedent in American history, and the Congressional Research Service agrees. Congressional Research Service Memorandum To: House Committee on the Judiciary, Attention: Perry Apelbaum. From: Johnny H. Killian, Senior Specialist, American Constitutional Law, American Law Division. Subject: Precedent for Congressional Bill. This memorandum is in response to your query, respecting H.R. 3313, now pending before the House of Representatives, as to whether there is any precedent for enacted legislation that would deny judicial review in any federal court of the constitutionality of a law that Congress has enacted, whether a law containing the jurisdictional provision or an earlier, separate law. We are not aware of any precedent for a law that would deny the inferior federal courts original jurisdiction or the Supreme Court of appellate jurisdiction to review the constitutionality of a law of Congress.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, it is with great pride that I take this opportunity to extend my congratulations to four Americans who went to Athens to compete in the 28th Olympic Games last month, and came back as Olympic medal winners. With ties to Wisconsin's Fifth District, they are: Chris Ahrens (Whitefish Bay), Paul Hamm and Morgan Hamm (Town of Waukesha), and Beezie Madden (Bayside). Winner of the gold medal in the U.S. Men's Eight (rowing), Chris started rowing by going out with his dad to the Milwaukee Rowing Club at 6 years of age. After finishing fifth in the 2000 Olympics in the Men's Eight, Chris retired and took 3 years off. Fortunately for America, in 2003, he changed his mind and returned to the sport to represent his Nation with success. In the sport of gymnastics, Wisconsin was represented by Olympic gold and silver medal winner Paul Hamm, and his twin brother, Morgan Hamm, a silver medalist. Growing up on a farm in Waukesha, the Hamm twins practiced on makeshift equipment--a pommel horse constructed out of a maple tree, and the upholstery of a car; rings hung up in the attic; a trampoline set up in the barn, and parallel bars made from a stairway railing. This goes to show that you don't need state of the art equipment to create champions--you need heart. In Athens, Beezie (Elizabeth) Madden was an integral part of the U.S. equestrian team that took the silver medal in Team Jumping. Nicknamed after her great-grandmother, Beezie took her first riding lesson at the age of 3. She got her first horse as a Christmas present when she was 4, and 2 years later, she competed in her first horse show. Mr. Speaker, I would like to thank all four of these athletes for representing our country with such honor, and congratulate them on their success.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I yield myself the balance of the time.

Mr. SENSENBRENNER. Mr. Speaker, has the time for the minority expired?

Mr. SENSENBRENNER. Mr. Speaker, I believe that this debate has fulfilled the majority leader's admonition that the debate be civil. There are strongly held positions on both sides of this question, and I think that both of them have been very well articulated during the course of this debate. I firmly believe that this bill is not only constitutional but it is also wise and necessary to prevent court decisions from further tearing apart the fabric of our society. Forty-two years after the Supreme Court decided Marbury v. Madison, the court in the case of Cary v. Curtis in 1845 upheld the regulation of the judicial power by the Congress, and I would like to quote from that decision: ``Dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress. To deny this position would be to elevate the judicial over the legislative branch of the government, and to give to the Federal judiciary powers limited by its own discretion merely.'' This bill attempts to limit the power of the Federal judiciary to export the decision of a divided court in Massachusetts to the other 49 States which do not have laws granting marriage licenses to same-sex individuals. The people who have been arguing against this bill, Mr. Speaker, seem to think that the State courts are second-class courts, but we believe that they are equally capable of deciding Federal constitutional questions. Nothing in H.R. 3313 denies the right of a same-sex couple married in Massachusetts to file a petition in State court to have that license and that marriage recognized within that State, and the State courts are perfectly capable of making that determination. Somehow my colleague from Wisconsin says that this bill slams the door of the Federal courthouse to people who wish to exercise their constitutional rights. Well, I spent a lot of time in Madison as a law student and as a State legislator, and the current Federal courthouse is just a few blocks away from the Dane County Courthouse, and there are judges there that will have all the jurisdiction they need to adjudicate the claims that the gentlewoman from Wisconsin was talking about, and those judges I think are perfectly capable of adjudicating those claims, notwithstanding the lack of confidence on the part of some of the people who have been arguing against this bill. The real issue is the issue of marriage, and marriage is the foundation upon which any civilized society has been based, long before the United States of America was established and the Constitution was ratified in 1789. Marriage is under attack as a result of the 4 to 3 decision of the supreme judicial court of Massachusetts. This bill does not affect what Massachusetts does with that decision. Under this bill, it will be the legislature and the voters and the judges in Massachusetts, should they change their mind, that will determine whether that 4 to 3 decision stands; but what this bill will do is to prevent the export of that Massachusetts decision to the other 49 States that do not allow marriage licenses to be issued to same-sex couples. I sincerely doubt that when James Madison wrote the Constitution and when the legislatures of the 13 States at that time ratified the Constitution that they ever dreamed that the Federal judiciary would be used to have a decision that has been made in a single State become national policy. The way we prevent that from becoming national policy is by passing this bill. I urge an ``aye'' vote.

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

Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman from Arizona (Mr. Franks).

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Nebraska (Mr. Osborne).

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman from Florida (Mr. Stearns). (Mr. STEARNS asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman from Missouri (Mr. Akin). (Mr. AKIN asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield 2\1/2\ minutes to the gentleman from Illinois (Mr. Hyde), the distinguished former chairman of the Committee on the Judiciary. (Mr. HYDE asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield to the gentleman from Iowa for purposes of a unanimous consent request.

Mr. SENSENBRENNER. Mr. Speaker, I object to the vote on the ground that a quorum is not present and make the point of order that a quorum is not present.

Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman from Texas (Mr. Neugebauer). (Mr. NEUGEBAUER asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield myself 30 seconds. Mr. Speaker, the gentleman from New York has just referenced the Daschle provision in Public Law 107-206 and said it was not, ``court- stripping.'' I just want to quote what the provision of law says: ``Any action authorized by this section shall not be subject to judicial review by any court of the United States.'' That quote from the law speaks for itself. Mr. Speaker, I yield 2 minutes to the gentleman from Alabama (Mr. Bachus).

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Indiana (Mr. Pence), a member of the Committee on the Judiciary. (Mr. PENCE asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I can understand the fervor of the gentlewoman from California (Ms. Pelosi), distinguished minority leader, in opposition to this legislation. She did not support the Defense of Marriage Act when it was passed in 1996 and signed by President Clinton. But to insinuate that this bill is an attack on the foundations of our government is just plain wrong. The framers of the Constitution put in Article III, Section 2 relating to the jurisdiction of the Federal courts, inferior Federal courts and the appellate jurisdiction of the Supreme Court to provide a check by the legislative branch of government on the judicial branch of government, and we have heard quotes from Thomas Jefferson and Abraham Lincoln expressing their fears about judicial power being unchecked. This bill is a check on judicial power, and the question is whether we should have the elected representatives of the people, in this case the Congress today and the State legislatures in the future, determining Federal marriage policy, or whether we should have a Federal judge stating that for a State to take a different position than a divided court in Massachusetts is an unconstitutional deprivation of rights. Now, in the last 10 years or so Congress has restricted the jurisdiction of the Federal courts on numerous occasions. Much has been mentioned here about the provision that the minority leader in the Senate, Senator Daschle, put into Public Law 107-206. The press comments about that action, which is public law today, included headlines that said: ``Daschle seeks to exempt his State; wants logging to prevent fires,'' and ``Plan to curb forest fires wins support.'' Senator Daschle told the Congress and the country there was an emergency in his State, that action needed to be taken, and we could not have judicial review. The Congress agreed. And we did not hear the hue and cry about the Constitution being undermined because of a congressional determination that there had to be some logging to prevent forest fires in South Dakota, and I think the Congress was right in agreeing with Senator Daschle in this instance. Now, there are a number of other instances in the past 10 years where Congress has precluded Federal judicial review in cases. In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 was passed. That was Public Law 104-208. It precluded all judicial review over specified discretionary decisions of the Immigration and Naturalization Service. There you are involving the allegations of rights by people who are subject to deportation or other actions by the INS. Congress, when it passed that bill, and it was signed by President Clinton, said no judicial review. Did we hear at the time that that undermined the Constitution? No, we did not. It was a correct decision by the Congress to preclude judicial review on this. After September 11, 2001, Congress passed the Terrorism Risk Insurance Act, Public Law 107-297, precluding judicial review of certifications by the Secretary of the Treasury that a terrorist event had occurred. Did anybody allege that that undermined the Constitution at the time? No way. The Small Business Liability Relief and Brownfields Revitalization Act, also passed in the last Congress as Public Law 107-118, precludes judicial review of hazardous waste cleanup programs. So this has been going on all the time. The Judiciary Act of 1789, one of the first bills passed by the first Congress, recognized that the judicial power of the United States was not unlimited and limited that judicial power. There have been expansions and contractions in the area of diversity jurisdiction of the Federal courts. Nobody has alleged that the Constitution is being undermined; and, in fact, Federal judges have come to the Congress and asked that the jurisdictional amount in diversity cases be raised so they did not have as many cases to decide. We have heard the Supreme Court say in asbestos that there should be some way to prevent 600,000 cases from choking the Federal court dockets. I would hope that we would be able to pass some kind of asbestos litigation reform. The fact of the matter remains that we could go on and on and on. It does not violate the Constitution. There are over 200 years of precedents in adjusting the jurisdiction of the Federal Court. What this bill says is that if a State decides it does not want to recognize a same-sex marriage license granted in another State, there will not be Federal judicial review to do so. This is a States rights bill, and the Supreme Court has repeatedly said that marriage and family law is primarily a matter of the States, and this ensures that it will be. Mr. Speaker, I yield 1 minute to the gentlewoman from Tennessee (Mrs. Blackburn).