Lamar Smith

Mr. SMITH of Texas

Mr. SMITH of Texas. No. We were talking about individuals where there is a real threat.

Mr. SMITH of Texas. I was not talking process. I was talking real people, real children who might be smuggled, real illegal aliens.

Mr. SMITH of Texas. Mr. Chairman, will the gentleman from North Carolina yield?

Mr. SMITH of Texas. Mr. Chairman, I will be very brief. I just wanted to correct the gentleman from Massachusetts. The amendment actually says that the countries only have to be in the process of developing a machine readable passport, not that they actually have to have one so we still have the problem with counterfeiting passports, and we still have the problem with child smuggling as well.

Mr. SMITH of Texas. Mr. Chairman, will the gentleman from North Carolina yield?

Mr. SMITH of Texas. I am reclaiming my time, Mr. Chairman, because my story had a point. Yes, it was apocryphal, but yes, the point was that it could occur if Portugal was a visa waiver country. And I am not going to yield because I need to finish some comments I would like to make. Mr. Chairman, the problem with Portugal and Greece is not the fact that they are not great countries. The problem, as recognized by the State Department and the Department of Justice and the White House, is that we should not lower our standards just to accommodate these specific countries. They can improve their records themselves. Then they can be admitted to the Visa Waiver Program. In the case of Portugal, we have a country that already has 26,000 people in this country illegally, and that is with the visa screening process because they are not part of the Visa Waiver Program. If they become part of the Visa Waiver Program, how many more times that 26,000 illegal folks are we going to have in this country from Portugal? The point is, we do not know, but it could be in the hundreds, and that is why, clearly, if we have a Visa Waiver Program in Portugal, we are going to contribute significantly, in fact, to the illegal population in America. Undeniably, if Portugal becomes a visa waiver country, there will be more illegal aliens from that country than any other visa waiver country. In the case of Greece, again I repeat the point I made a while ago, that the record for Greece is worsening. The number of individuals who were denied their visas in fiscal year 1997 is greater than the number denied in fiscal year 1996. Their record is going exactly the wrong direction. Why we want to reward that country when their record is worsening, I do not know. But in any case, we should not weaken our standards. Now, in the case of Portugal, and again it is a great, great country, but unfortunately, with their passport the way it is today, it does lend itself, as the State Department and Justice Department have told us and we have seen demonstrated from cables, it does lend itself to having its passports counterfeited; and it does lend itself to child smuggling simply because they do not have photographs of children. All that is required is the name and age. It is very, very easy for individuals to smuggle over the children from Portugal. So, again, Mr. Chairman, the debate is not about whether people of Portugal or Greece are great people. That is undeniable. It is undeniable that these are great countries. But it is also undeniable that we are going to increase our illegal immigration problem in America if we lower the standards and admit countries so that they no longer have to obtain visas if they are coming to America. It is also undeniable that if we lower these standards, we are going to increase the temptation for individuals to smuggle children into the country as well. It is also undeniable that if we pass this amendment, we are going to be admitting one country that will contribute to our illegal immigration problem and another country that has a record going in the exact wrong direction when it comes to lowering visa fraud rather than increasing it. Mr. Chairman, I would simply urge my colleagues to oppose this amendment, support the underlying bill, and join the administration and many of us who are concerned about illegal immigration.

Mr. SMITH of Texas. Mr. Chairman, how much time remains on each side?

Mr. SMITH of Texas. Mr. Chairman, I yield myself such time as I may consume. Let me respond to another Dear Colleague. I mentioned the 3 Dear Colleagues that seem to say we ought to give preference to Portugal and Greece because they are in Europe. This is another Dear Colleague that says that the Visa Waiver Program ``discriminates against Greece and Portugal.'' Let me reiterate and say that the Visa Waiver Program does not discriminate against anyone, it applies the same standards to every country in the world. And again I say, as I mentioned a while ago, to reward a couple of countries that have not met the long-established criterion that is objectively applied is like saying to a student who failed the test, we are going to keep lowering the passing grade until we pass you. That is not good for education; it is not good for immigration policy. In the case of Greece and Portugal, two great, wonderful countries, they simply do not qualify. The amendment is not to carve out any kind of a special exemption for those countries. As I mentioned a while ago, it is interesting to me that the special exemption starts right before a number of our other allies, perhaps like Israel is, if we were going to expand the program, why not catch all the other allies? But the amendment is not to make any special exemption for any special country; it is for that country to take the steps itself. Again, I double-checked my figures that were in discussion a few minutes ago and confirmed the fact that in the case of Greece, their record on visa refusals was, in fact, worse in 1997 and in 1996. So this amendment that we expect includes one country, Greece, which unfortunately has a record that is going in the exact wrong direction. The likelihood of illegal immigration is increasing; it is not decreasing. And again, why admit a country that is going to increase illegal immigration? I can understand why that might be in the interest of some of our friends in these other countries, but I would like for someone to explain for me why it is good for America to increase illegal immigration.

Mr. SMITH of Texas. I yield to the gentleman from Rhode Island.

Mr. SMITH of Texas. Mr. Chairman, let me reclaim my time and ask the gentleman to point to some figures that I believe he has, and these are the refusal rates tabulated by the Department of State; and he will see in fiscal year 1996, which is what I am looking at, the Greece visa refusal rate was 2.48. In fiscal year 1997, it was 2.81. Now, it seems to me that 2.8 is greater than 2.4, and if that is the case, then the visa refusal rates were worse in 1997 than 1996. And I would stand by my statement, the record is getting worse for Greece, not better.

Mr. SMITH of Texas. Mr. Chairman, the overstay rate has not been current for 5 years. That is why we all agree that we need to extend the program for 2 years and get the correct data from the INS. When we have the right data, then we will be in a better position. But the data that we have is over 5 years old. Mr. Chairman, how much time do I have remaining?

Mr. SMITH of Texas. Mr. Chairman, I yield myself such time as I may consume. Let me conclude by saying once again that today our colleagues are seeing a rare alignment of orbits here where we have the Department of Justice, the State Department, and the White House itself joining many of us in Congress who are Republicans in saying that we need to extend the program, but we need to oppose any weakening amendments. The primary reason for opposing those weakening amendments is because of the danger of increasing illegal immigration in America. As I pointed out, unfortunately and regrettably, the country that seems to have let a lot of people into the country illegally is Portugal, 26,000 today. And that is why the visa screening process is in place. If Portugal becomes a Visa Pilot Program and it has an exemption for obtaining visas, then we are going to be in a situation where it is even easier for individuals from that country to come into the United States and stay illegally. That 26,000 figure is simply going to explode; we will have more illegal aliens from Portugal than any other visa exemption country. Second of all, in the case of Greece, then their record is going the wrong direction. We should not be going in a direction that is going to continue to undermine the integrity of the immigration system. One more point about Portugal. We have there, in the State Department as well, one of the real concerns that we have and that they have is that if Portugal became a visa waiver country, we would see a dramatic increase in child smuggling. The reason for that is that Portugal has passports that do not have the photographs of children on them; and just because a document or a passport is machine readable does not require that they have the photographs of the children. And that is one reason the State Department has also opposed admission of Portugal as a visa waiver state. Mr. Chairman, I simply conclude by saying that we should not change our standards to accommodate specific countries. We ought to remember that we have a very clear analogy here, and that is, if we were a teacher, we are not going to change the failure grade 50 to 40 just to accommodate a specific student. We should not lower our standards in immigration policy just to accommodate a specific country. Mr. Chairman, I yield back the balance of my time.

Mr. SMITH of Texas

Mr. SMITH of Texas. Madam Speaker, I ask unanimous consent that all Members may have 5 legislative days in which to revise and extend their remarks on the bill just passed.

Mr. SMITH of Texas

Mr. SMITH of Texas. Madam Chairman, I yield myself the balance of my time. Once again, I want to say to my colleagues and reassure them that H.R. 992 is a fair, straightforward, common-sense way to give every property owner across America their right to choose the court that they think is best for their claim, either the claims court or the Federal district court. This amendment again would destroy that option. If we support giving private property owners their day in court, if we believe property owners, not the Federal Government, should choose the court that hears their case, if we believe that property owners do not deserve to be treated like a ping-pong ball and shuffled back and forth between courts, if we believe in fairness and equity, then I encourage my colleagues on both sides of the aisle to vote for this fair, straightforward, common-sense bill and support the right of every property owner across America to have their day in court and in the court that is best for them. Madam Chairman, I have made a good-faith effort over the last 2 days to address the concerns of my colleagues that we not affect in any way environmental laws. With the adoption of the amendment that I offered last night during our debate, this bill does not affect those laws or preempt them in any way. I urge my colleagues who had concerns to vote for H.R. 992 with my amendment to protect environmental laws and to vote no on the administration's amendment offered by the gentleman from North Carolina (Mr. Watt). Among many organizations, the Chamber of Commerce, the realtors and the homebuilders support this legislation and oppose this amendment. I urge a strong bipartisan vote in opposition to this amendment and in favor of the underlying bill. Madam Chairman, I yield back the balance of my time.

Mr. SMITH of Texas. Madam Chairman, I yield myself 15 seconds. Madam Chairman, I just simply want to urge my opponents to read the Supreme Court cases that I mentioned a minute ago. If they did, I am sure they would understand why this bill is absolutely constitutional. Madam Chairman, I yield 1 minute to my friend, the gentleman from Ohio (Mr. Chabot).

Mr. SMITH of Texas. Madam Chairman, I yield myself 30 seconds. Madam Chairman, let me respond very briefly to my friend from New Jersey and say that the constitutional problems that he raised are just in the eyes of the beholder, just himself and a few others. They are certainly not in the eyes of judges or other courts who have ruled on this issue. I mentioned a while ago one case, the IBM versus United States case, where the Federal circuit recently affirmed a ruling by the Court of Federal Claims declaring a Federal tax statute to be unconstitutional. Clearly, the court is saying that the Court of Claims can so rule. I have also mentioned the Northern Pipeline Construction Company, which is a recent Supreme Court case, as well as the Commodity Futures Trading Commission case, which was also a recent Supreme Court case. Both of those cases put up tests that could be met by the Court of Claims, and any ruling that it would make in regard to the Fifth Amendment taking claims would clearly be constitutional. If the plain language of the Supreme Court cases is not clear to my friends, I am happy for the judges to stand corrected, but that is a constitutional court, the Court of Claims. Madam Chairman, I reserve the balance of my time.

Mr. SMITH of Texas. Madam Chairman, I reserve the balance of my time.

Mr. SMITH of Texas. Madam Chairman, I yield myself such time as I may consume, and I rise in opposition to this amendment. The issues today are about equity and fairness. Every homeowner and property owner across America deserves to have their day in court and in the court that is best for them. An individual who seeks to contest a governmental taking must deal with unreasonable obstacles and costs in negotiating their way through the legal maze of the Tucker Act. Current law denies the Court of Federal Claims authority to hear claims for injunctive relief and denies the U.S. district courts the authority to hear claims for monetary relief over $10,000. The Federal Government often says that property owners have sued in the wrong court, bouncing property owners back and forth between the two courts. Some argue we should end the Tucker Act shuffle by giving only U.S. district courts the ability to grant complete relief in takings cases. But why should we disregard the Court of Federal Claims' expertise or its large body of case law and deny the court the ability to hearing takings claims for both monetary and equitable relief? Property owners have the right to be heard either in the Court of Claims or in the U.S. district court. Why not give property owners the option of going to the court that they think is best? If the property owner wants to pursue their claim in a court close to home, the property owner can choose a district court. If the owner wants to utilize the expertise of a specialized court, the owner can choose the Court of Federal Claims. We should make it as easy as possible for property owners to have their claims heard. There has been a concern voiced about giving an Article III court's powers to an Article I court; that it would somehow be unconstitutional. But the answer is that both courts are clearly constitutional. Furthermore, the bill directs that all appeals, whether from the U.S. district court or the Court of Federal Claims, will go to the same Court of Appeals for the Federal Circuit, an Article III court. The Constitution clearly allows Congress to provide the Court of Federal Claims with the power of providing relief in takings cases. First, each Federal court, whether an Article I court or an Article III court, has the inherent authority and duty to disregard unconstitutional statutes and regulations. In IBM vs. U.S., the Federal Circuit recently affirmed a ruling by the Court of Federal Claims declaring a Federal tax statute to be unconstitutional. Second, the Court of Federal Claims already has the power to grant injunctive relief in various areas, which today total 40 percent of its current docket load. And third, the recent Supreme Court cases of Northern Pipeline Construction Company vs. Marathon Pipeline Company, and Commodity Futures Trading Commission vs. Schor, both signal Congress' ability to give the Court of Federal Claims the power to grant total relief in takings cases. Private property owners should have the option and the opportunity to assert their constitutional rights in the court of their choice without being treated like a Ping-Pong ball. Every property owner in America has the right to obtain a timely resolution, one way or the other, of their takings claims. They deserve to have their day in court and in the right court, the court of their choice. There are some, and I certainly do not put my friend from North Carolina in this category, but there are some who say they are for property rights. What they mean is they are for property rights in the abstract; they are for property rights theoretically; and they are for property rights idealistically. But when it comes to relevant people with real problems, and we have abundant examples of horror stories, when it comes to real people with real problems, somehow these theoretical abstract property rights supporters can never be found. H.R. 992 is a fair, straightforward, common-sense way to get every property owner across America their right to choose the court that they think is best for their claim, either the Claims Court or the Federal District Court; and this amendment would destroy that option that every property owner in America should have. Madam Chairman, I urge my colleagues to vote against this amendment. Madam Chairman, I reserve the balance of my time.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Chairman, I yield myself such time as I may consume just to point out that in the statement that my colleague from North Carolina just read, it is abundantly clear that the President himself has not said he is going to veto it or has threatened to veto, it is just a few members of his administration that have recommended to veto, and as he knows, there is a great chasm between recommending and threatening, and I am not aware of any controlling authority that any member of the administration has to actually veto anything. Mr. Chairman, I yield 2 minutes to the gentleman from Texas (Mr. Green). (Mr. GREEN asked and was given permission to revise and extend his remarks.)

Mr. SMITH of Texas. Mr. Chairman, the amendment that I am offering now has language that has been added that the gentleman from North Carolina and I talked about earlier today, and I want to reassure him that that language has been inserted.

Mr. SMITH of Texas. Mr. Chairman, will the gentleman yield?

Mr. SMITH of Texas. Mr. Chairman, my colleague, the gentleman from North Carolina (Mr. Watt), has raised a concern that this bill might change the preclusive review provisions that are contained in some Federal environmental statutes. Such provisions specify that the review of the particular statutes must be handled by specified Federal courts. The preclusive review issue is not one about substantive law, only about which Federal courts get to adjudicate a dispute regarding a particular statute. In any event, I want to reassure my colleagues that the Tucker Act Shuffle Relief Act will not modify any Federal environmental laws, so I am offering this amendment to make sure that the bill does not override preclusive review provisions. My amendment simply states that the grant of jurisdiction made by the Tucker Act Shuffle Relief Act does not extend to matters over which other Federal law has granted exclusive jurisdiction to one or more United States courts of appeals or district courts. This shows the preclusive provisions will not be touched by this bill. While the concern raised about preclusive review is unfounded, in my opinion, I do want to make a good faith effort to address it, so I encourage Members to support this amendment.

Mr. SMITH of Texas. Mr. Chairman, I offer an amendment.

Mr. SMITH of Texas. Mr. Chairman, I yield myself such time as I may consume. A previous speaker mentioned that the Justice Department had some concern that this bill would encourage forum shopping. However, I want to point out that this is the same Justice Department in 1995 that admitted that under current law, ``The government presumably would have the right to transfer the cases and consolidate them in one forum.'' Also, all appeals in ``takings'' cases will be heard by the Court of Appeals for the Federal circuit, so a court precedent in takings cases will remain uniform regardless of what trial court a citizen initially chooses. The citizen will not be able to avoid unfavorable precedent by going to one court or the other. Another point is that today a citizen has a choice of three courts to go to in a tax case. If the citizen does not pay the tax owed, he or she can go to a tax court. If the citizen pays the tax, the citizen can choose to go to the district court nearest to where they reside, or they can go to the Court of Federal Claims. As Chief Justice Lawrence Smith has stated, ``All 3 courts have developed their own particular abilities, and this system has provided, in the view of really all the tax bar, even the IRS and the Justice Department, a better system for the United States.'' We should provide U.S. citizens the same flexibility in takings cases that they now enjoy in tax disputes. We should allow them to choose a U.S. district court or the Court of Federal Claims, depending on their needs. Just as detrimental forum shopping has not developed in tax cases, it will not develop in takings cases either. Mr. Chairman, the gentleman from North Carolina (Mr. Watt) mentioned a while ago his constitutional concerns and I want to lay them to rest. The Constitution clearly allows Congress to provide the Court of Federal Claims with the power providing equitable and declaratory relief in takings cases. First, each Federal court, whether an Article I court or an Article III court, has the inherent authority and duty to disregard unconstitutional statutes and regulations. So in IBM Corporation v. U.S., the Federal circuit recently affirmed a ruling by the Court of Federal Claims declaring the Federal tax statute to be unconstitutional. Second, the Court of Federal Claims already can provide the declaratory and equitable relief in various areas which now encompass about 40 percent of its docket. Third, recent Supreme Court cases of Northern Pipeline Construction Company v. Marathon Pipeline Company and Commodity Futures Trading Commission v. Shore both signal Congress's ability to give the Court of Federal Claims the power to grant total relief in takings cases. Mr. Chairman, in closing, let me reiterate that this legislation is based on equity and fairness. Every homeowner and every property owner across America deserves to have their day in court and in the right court and the court of their choosing. Property owners in America should not be shuffled back and forth between courts by the Federal Government when they are simply trying to assert their Fifth Amendment property rights. H.R. 992 provides a solution to the unreasonable obstacles and costs property owners face today because of the Tucker Act. This bill would simplify the process for private property owners by giving them an option to go either to the Court of Federal Claims or the U.S. district courts for remedies concerning only Fifth Amendment private property takings cases. We do not change the substantive law that defines a taking; we leave it to current law to determine whether there is a legal claim. My amendment on preclusive review assures that this bill will not modify environmental statutes, so the main objection of the League of Conservation Voters and a few of my colleagues has been addressed. H.R. 992 simplifies the ability of every property owner in America to obtain a timely resolution one way or the other of their takings claim. If one supports giving private property owners their day in court, if one believes property owners, not big government, should choose the court that hears their case, if one believes that property owners do not deserve to be treated like a ping-pong ball by the Federal Government, if one believes in fairness and equity, then I encourage my colleagues on both sides of the aisle to vote for this simple, straightforward, common sense bill and support the right of every property owner across America to have their day in court. Mr. Chairman, the Chamber of Commerce, the Realtors, and the Home Builders hope my colleagues will vote for this bill, too, and oppose the Watt amendment tomorrow.

Mr. SMITH of Texas. Mr. Chairman, I would say to my colleague from North Carolina that I do not have any other speakers, but I intend to close. Mr. Chairman, I reserve the balance of my time.