Lamar Smith

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, let me be clear. Any Member who votes for this bill is voting to grant D.C. residents more voting power in the House of Representatives than any of their own constituents now enjoy. That is because this latest version of the bill fails to eliminate the position of D.C. Delegate. The D.C. Delegate can, of course, vote in committee, which means that if this bill passes, D.C. residents will have two votes in committee and one on the House floor. That would give D.C. residents more voting power in the House than any other voter in the country. That is obviously unfair, and I think we all know it. Mr. Speaker, this motion to recommit simply requires expedited judicial review of the constitutionality of the bill's provision. I believe this legislation is unconstitutional and will produce significant legal and electoral turmoil if enacted. So it is critical that the motion to recommit be adopted to ensure that if the bill violates the Constitution, that unconstitutional action will not be prolonged. This motion to recommit constitutes the very same expedited judicial review provision Congress agreed was appropriate, on a bipartisan basis, in the McCain-Feingold campaign finance law. That provision was successfully employed to facilitate the Supreme Court's expeditious review of that legislation. Opponents might claim that an expedited review of the legislation would already be provided by 28 U.S.C. sections 2284 and 1253, but that is very far from clear. 28 U.S.C. section 2284 only applies to ``actions filed challenging the constitutionality of an apportionment of a congressional district over the apportionment of any statewide legislative body.'' The creation of a new House Member to represent a non-State constitutes neither an apportionment nor something relating to a statewide legislative body. The 14th amendment itself makes clear that apportionment is a concept that only applies to States. Also, nothing in 28 U.S.C. section 1253 requires the Supreme Court to ever hear the case, and absent a statutory requirement, the Supreme Court retains the discretion regarding whether and when to a hear a case. In contrast, the motion to recommit requires that the case be brought in the District of Columbia before a three-judge Federal district court with direct appeal to the Supreme Court. The motion to recommit provides that ``It shall be the duty of the United States District Court for the District of Columbia and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of the action and appeal.'' Professor Jonathan Turley, someone the majority consults frequently for his views, said in his testimony offered at the Judiciary Committee's hearing on the first of three versions of this bill that were introduced, ``Permit me to be blunt, I consider this act to be the most premeditated unconstitutional act by Congress in decades.'' As Professor Turley also pointed out, the inevitable legal challenge to this bill could produce legislative chaos. With a relatively close party division in the House, the casting of a determinative vote subsequently held invalid by a court could throw the validity of pieces of future legislation into question. There is no reason to stall a judicial resolution of these important issues, especially when doing so risks legislative chaos regarding the validity of future legislation passed by the House. Mr. Speaker, if supporters of H.R. 1905 believe the bill is constitutional, and I know they do, they should want to get that constitutionality established by the Supreme Court as soon as possible. Likewise, we should all want to shorten the time that the Representatives created under this bill would serve, if they are, in fact, declared unconstitutional. The bill is either constitutional or it is not. Let's adopt this motion to ensure that question is resolved expeditiously and to prevent as much uncertainty as possible. I encourage my colleagues to support this motion to recommit.

Mr. SMITH of Texas. I am in its current form.

Mr. SMITH of Texas. Mr. Speaker, on that I demand the yeas and nays.

Mr. SMITH of Texas

Mr. SMITH of Texas. Madam Speaker, today I am pleased to join the gentleman from Massachusetts, Mr. Delahunt in introducing the ``Need- Based Educational Aid Act of 2007.'' Beginning in the mid-1950s, a number of private colleges and universities agreed to award financial aid solely on the basis of demonstrated need. These schools also agreed to use common criteria to assess each student's financial need and to give the same financial aid award to students admitted to more than one member of that group of schools. From the 1950s to the late 1980s, the practice continued uncontested. In 1989, the Antitrust Division of the Department of Justice brought suit against 9 of the colleges that engaged in this practice. After extensive litigation, the parties entered into a consent decree in 1991 that all but ended the practice. In 1992, Congress passed the first exemption to the antitrust laws for these colleges as part of the Higher Education Amendments of 1992. That temporary exemption codified the settlement and allowed agreements to provide aid on the basis of need only, to use common criteria, to use a common financial aid application form, and to allow the exchange of students' financial information through a third party. It also prohibited agreements on awards to specific students. In 1994, Congress extended this exemption as part of the Improving America's Schools Act. Congress has extended the exemption twice since 1994--in 1997 and 2001. As of May 2006, twenty-eight schools utilized this antitrust exemption. This exemption expires on September 30, 2008. I believe the current exemption makes sense, and to my knowledge there have been no complaints about it. A recent GAO study of the exemption found there has been no abuse of the exemption and stated that there has not been an increase in the price of college as a result of the exemption. The Antitrust Modernization Commission, which is due to release its final report next week, studied this exemption and found that it provides ``limited immunity for limited conduct,'' that is, it is narrowly tailored to meet its goals of promoting access to need- based financial aid. This bill would make the exemption passed in 1992, 1994, 1997, and 2001 permanent. It would not make any change to the substance of the exemption. The need-based financial aid system serves worthy goals that the antitrust laws do not adequately address, namely, making financial aid available to the broadest number of students solely on the basis of demonstrated need. No student who is otherwise qualified should be denied the opportunity to go to one of these schools because of the limited financial means of his or her family. This bill helps protect need-based aid and need-blind admissions. The last time a permanent extension of this antitrust exemption was considered by the House it passed by a vote of 414 to 0. I urge my colleagues to support this bill as well.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, this legislation would return the procedures for appointing interim U.S. Attorneys to what it was before Congress reauthorized the PATRIOT Act. Some have claimed that the PATRIOT Act's reform was used to avoid Senate confirmation of permanent U.S. attorneys. To prevent that alleged abuse, this bill, H.R. 580, was rushed headlong through the Judiciary Committee. One hearing was held on the bill. But that hearing focused mostly on the current U.S. Attorney controversy, not the bill, itself. It was then pushed immediately to the full committee, without an opportunity for subcommittee mark-up. Republicans on the Judiciary Committee would have liked to have worked more with the Democrats in a bipartisan fashion to improve the existing law. We might well have found a better solution. The majority's own witnesses at the hearing, for example, testified that much of the problem with the interim appointments process is the time it takes to obtain Senate confirmation. This bill, however, does not address that problem. Given more time, we might have considered some promising ideas from the other side of the Capitol. Senator Kyl, for example, proposed a 120-day interim appointment power for the Executive Branch, and a 120-day clock for the Senate to confirm permanent appointees. This would have addressed the principal problem. Senator Sessions proposed to set qualification standards for judicial appointments of interim appointees. These standards would have helped prevent unsuitable judicial appointees--assuming, for the purposes of argument, that there should be any judicial appointees of Executive Branch prosecutors. This bill would allow judges to appoint the very Executive Branch prosecutors practicing before them, and would raise legal, ethical and practical concerns. Surely we could have done better than return to a flawed law of the past. The rush to legislation also led to an under-considered amendment adopted at committee mark-up. That amendment would preclude the use of the full range of tried and true tools in the Vacancy Reform Act to obtain interim U.S. Attorneys. Specifically, it would preclude the President from reaching out to Senate-confirmed, Presidential appointees serving in other capacities, rather than just career civil servants, to serve in these important posts on an interim basis. The amendment limits the pool of qualified individuals to serve temporarily as U.S. Attorneys, so it weakens the federal government's ability to fight crime. In these times of the War on Terror and the continuing, age-old war on crime, the service of U.S. Attorneys--the front line of federal law enforcement--is more than ever a matter of first importance to the Nation. Their appointment is serious business. We should not have rushed to judgment in attending to this business, but instead have given the legislative process the time that it deserves. We have missed an opportunity to improve this bill. The American people have not been well-served.

Mr. SMITH of Texas

Mr. SMITH of Texas. Madam Speaker, I yield 1\1/2\ minutes to the gentleman from Ohio (Mr. Jordan), a valued member of the Judiciary Committee.

Mr. SMITH of Texas. Madam Speaker, I yield 2 minutes to the gentleman from California (Mr. Issa), a member of the Judiciary Committee and also a member of its Constitution Subcommittee. (Mr. ISSA asked and was given permission to revise and extend his remarks.)

Mr. SMITH of Texas. Madam Speaker, I yield 2 minutes to my friend from Virginia (Mr. Goodlatte), a senior member of the Judiciary Committee. (Mr. GOODLATTE asked and was given permission to revise and extend his remarks.)

Mr. SMITH of Texas. Madam Speaker, I yield 2 minutes to the gentleman from Texas (Mr. Gohmert), a member of the Judiciary Committee and the deputy and ranking member of the Crime Subcommittee.

Mr. SMITH of Texas. Madam Speaker, I yield 2 minutes to the gentleman from California, Mr. Daniel E. Lungren, a member of the Judiciary Committee and a former attorney general of the State of California.

Mr. SMITH of Texas. Madam Speaker, I yield myself 15 seconds. Madam Speaker, I certainly agree with the majority leader on one point that he made and that is that Washington, D.C. is distinctive. However, it is especially distinctive because it is the only capital in the world that exists under the U.S. Constitution, and that is why this bill is unconstitutional. Madam Speaker, I include for printing in the Record the Statement of Administration Policy in opposition to this bill. Statement of Administration Policy: H.R. 1433--District of Columbia House Voting Rights Act of 2007 (del. norton (d) district of columbia and 17 cosponsors) The Administration strongly opposes passage of H.R. 1433. The bill violates the Constitution's provisions governing the composition and election of the United States Congress. Accordingly, if H.R. 1433 were presented to the President, his senior advisers would recommend that he veto the bill. The Constitution limits representation in the House to representatives of States. Article I, Section 2 provides: ``The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State legislature.'' The Constitution also contains 11 other provisions expressly linking congressional representation to Statehood. The District of Columbia is not a State. Accordingly, congressional representation for the District of Columbia would require a constitutional amendment. Advocates of congressional representation for the District have long acknowledged this. As the House Judiciary Committee stated in recommending passage of such a constitutional amendment in 1975: ``If the citizens of the District are to have voting representation in the Congress, a constitutional amendment is essential; statutory action alone will not suffice. This is the case because provisions for elections of Senators and Representatives in the Constitution are stated in terms of the States, and the District of Columbia is not a State.'' Courts have reached the same conclusion. In 2000, for example, a three-judge panel concluded ``that the Constitution does not contemplate that the District may serve as a state for purposes of the apportionment of congressional representatives.'' Adams v. Clinton, 90 F. Supp. 2d 35, 46-47 (D.D.C. 2000). The Supreme Court affirmed that decision. And just two months ago, Congress's own Research Service found that, without a constitutional amendment, it is ``likely that the Congress does not have authority to grant voting representation in the House of Representatives to the District of Columbia.'' Recent claims that H.R. 1433 should be viewed as an exercise of Congress's ``exclusive'' legislative authority over the District of Columbia as the seat of the Federal government are not persuasive. Congress's exercise of legislative authority over the District of Columbia is qualified by other provisions of the Constitution, including the Article I requirement that representation in the House of Representatives is limited to the ``several States.'' Congress cannot vary that constitutional requirement under the guise of the ``exclusive legislation'' clause, a clause that provides the same legislative authority over Federal enclaves like military bases as it does over the District. For all the foregoing reasons, enacting H.R. 1433's extension of congressional representation to the District would be unconstitutional. It would also call into question (by subjecting to constitutional challenge in the courts) the validity of all legislation passed by the reconstituted House of Representatives. Madam Speaker, I yield 2\1/2\ minutes to the gentleman from Wisconsin (Mr. Sensenbrenner), a former chairman of the Judiciary Committee.

Mr. SMITH of Texas. Madam Speaker, I yield myself such time as I may consume. Madam Speaker, I oppose this legislation because it is clearly unconstitutional. While the bill may be well-intentioned, as Members of Congress, we swear an oath to support our Constitution. We cannot gloss over its deficiencies. At the Judiciary Committee hearing on this bill, Professor Jonathan Turley, someone the majority consults frequently for his views, said, ``Permit me to be blunt, I consider this act to be the most premeditated unconstitutional act by Congress in decades.'' Supporters of this bill claim Congress owes the authority to enact this bill under a broad reading of the so-called District Clause in Article I, section 8. However, Article I, section 2 says, ``The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.'' Since D.C. is not a State, it cannot have a voting Member in the House. This was an issue that was clearly raised, debated and rejected by the Founding Fathers. Alexander Hamilton offered an amendment to the Constitution during the New York ratification convention that would have allowed Congress to provide the District with congressional representation, but his amendment was rejected by the convention on July 22, 1788. More recently in 2000, a Federal district court here in D.C. spoke on the issue, stating, ``We conclude from our analysis of the text that the Constitution does not contemplate that the District may serve as a State for purposes of the apportionment of congressional representatives.'' The House Judiciary Committee has already spoken on this point as well in the 95th Congress. Under the leadership of Democratic Chairman Peter Rodino, the Judiciary Committee reported out a constitutional amendment to do what this bill purports to be able to do by statute. The report accompanying that constitutional amendment stated the following, ``If the citizens of the District are to have voting representation in the Congress, a constitutional amendment is essential; statutory action alone will not suffice.'' Congress passed that constitutional amendment in 1978, but it failed to get the approval of three-quarters of the States over a 7-year period. In fact, only 16 of the 38 States required for its ratification supported the amendment. So what is being attempted by the legislation before us today is something long recognized as requiring a constitutional amendment that the vast majority of States have already failed to approve. Proponents of this legislation cite a 1949 Supreme Court case called Tidewater, but the nonpartisan Congressional Research Service issued a report analyzing that case. It concluded that ``at least six of the Justices who participated in what appears to be the most relevant Supreme Court case, National Mutual Insurance Co. of the District of Columbia v. Tidewater Transfer Co., authored opinions rejecting the proposition that Congress's power under the District Clause was sufficient to effectuate structural changes to the political structures of the Federal Government. ``Further, the remaining three judges, who found that Congress could grant diversity jurisdiction to District of Columbia citizens despite the lack of such jurisdiction in Article III, specifically limited their opinion to instances where there was no extension of anymore fundamental right,'' such as the right to vote for a Member of Congress. The unconstitutional approach of this bill is completely unnecessary. Most of the District of Columbia, other than a few Federal buildings, could simply be returned to the State of Maryland. That process of retrocession is clearly allowed by the Constitution. It would grant representation to those in Washington D.C., by a simple majority vote, and they would then have representation in both the House and Senate, an improvement over this bill that limits representation only to the House. Any discrepancies regarding the number of electorates granted to D.C. by the 23rd amendment could easily be corrected through a constitutional amendment once D.C. Members were represented in Congress through retrocession. Madam Speaker, even conceding for purposes of argument the proponents' interpretation of the vast breadth of the District clause, this bill unfairly subjects many citizens to unequal treatment. H.R. 1433 grants Utah an additional Representative that will run at- large or statewide. The at-large provision creates a situation this country has not seen since the development of the Supreme Court's line of cases affirming the principle of ``one man, one vote.'' Under this provision, voters in Utah would be able to vote for two Representatives, their district representative and the at-large representative, whereas voters in every other State would only be able to vote for their one district representative. The result would be that Utah voters would have disproportionately more voting power compared to the voters of every other State. There is no question D.C. residents have fought bravely in wars and served their country in a variety of ways. That is interesting, even heartrending, but irrelevant to whether or not this legislation is constitutional. I also ask this House to consider the serious, practical consequences of passing this legislation. The inevitable legal challenge to this bill could produce legislative chaos by placing into doubt any future legislation passed in Congress by a one-vote margin. Madam Speaker, I urge my colleagues to oppose this bill because it is clearly unconstitutional, and, if enacted, could lead to years of protracted legislation. Madam Speaker, I reserve the balance of my time.

Mr. SMITH of Texas. Madam Speaker, the motion to recommit I have offered contains a bipartisan proposal by Representatives Mike Ross and Mark Souder, the District of Columbia Personal Protection Act. My colleagues on the other side of the aisle have suggested today that District of Columbia citizens have the right to vote in Congress. If that is the case, then they must also agree that the citizens of the District should have a constitutionally guaranteed right to possess firearms. Currently, D.C. citizens are prevented from owning any handgun at all. Even those who lawfully own and store a rifle or shotgun are prohibited from using them to defend themselves, their families or their homes. District law threatens honest people with imprisonment if they unlock, assemble or load their guns even under attack. Although the District has the most stringent gun control laws in the Nation, they still suffer from one of the highest murder rates. Since January 1 of this year alone, 35 people have been murdered in the District. Last year over 150 people were murdered, and 2,000 suffered gun assaults. This violence continues unabated, despite the strict gun control laws. It is time to restore the rights of law-abiding citizens to protect themselves and to defend their families. On March 9, 2007, the U.S. Court of Appeals for the District of Columbia Circuit struck down some, but not all, of the District of Columbia's gun control laws as unconstitutional. The court agreed with the U.S. Court of Appeals for the Fifth Circuit, the Justice Department and constitutional scholars, present and past, that the second amendment protects the right of individuals to possess firearms. This court decision, which will continue to wind its way through the judicial system, compels Congress to act now to protect all second amendment rights. Mr. Speaker, the prohibition of firearms in the District of Columbia is as ineffective as it is unconstitutional. It is high time we rectify this wrong. I urge my colleagues to support this measure. Madam Speaker, I yield the balance of my time to the gentleman from Indiana (Mr. Souder), who in the last Congress passed a piece of legislation very similar to the motion to recommit that we consider now.

Mr. SMITH of Texas. I am, Madam Speaker, in its current form.

Mr. SMITH of Texas. Madam Speaker, I yield myself the balance of my time. Madam Speaker, let me summarize the reasons we should oppose this legislation. D.C. is not a State, and the Constitution clearly limits representation in the House to States. Supporters of this bill claim Congress has the authority to enact this bill under a broad reading of the so-called ``District clause'' in Article I, section 8 of the Constitution. However, Article I, section 2 clearly says, ``The House of Representatives shall be composed of Members chosen every second year by the people of the several States.'' The bill unfairly subjects many citizens to unequal treatment as well. H.R. 1433 grants Utah an additional Representative who will run statewide or at large. The at-large provision violates the principles of one man, one vote. Voters in Utah would be able to vote for two Representatives, their district Representative and their at-large Representative, whereas voters in every other State would only be able to vote for their one district Representative. The result would be that Utah voters will have disproportionately more voting power than the voters of every other State, and that, too, is clearly unconstitutional. In 2000, the Federal District Court in D.C. itself stated, ``We conclude from our analysis of the text that the Constitution does not contemplate that the District may serve as a State for purposes of the apportionment of congressional representatives.'' Furthermore, Madam Speaker, this unconstitutional approach is completely unnecessary. Most of the District of Columbia, other than a few Federal buildings, could simply be returned to the State of Maryland. That process of retrocession is clearly allowed by the Constitution. That process could grant representation in the House to those in Washington by a simple majority vote. D.C. voters could then be represented by both House and Senate Members, an improvement over the current legislation. Madam Speaker, finally, and for many good reasons, the administration also opposes this legislation. Madam Speaker, I yield back the balance of my time.

Mr. SMITH of Texas. Madam Speaker, I offer a motion to recommit.

Mr. SMITH of Texas. Madam Speaker, I have no further requests for time, and I reserve the balance of my time.

Mr. SMITH of Texas. Madam Speaker, I yield 1 minute to the gentleman from Nevada (Mr. Heller).

Mr. SMITH of Texas. Madam Speaker, I yield 1 minute to the gentleman from Florida (Mr. Feeney), a former Speaker of the House in Florida. (Mr. FEENEY asked and was given permission to revise and extend his remarks.)

Mr. SMITH of Texas. Madam Speaker, I yield 1 minute to the gentleman from Ohio (Mr. Regula), a senior Member of this body. (Mr. REGULA asked and was given permission to revise and extend his remarks.)

Mr. SMITH of Texas. Madam Speaker, I yield 1 minute to my colleague from Texas (Mr. Poe).

Mr. SMITH of Texas. Madam Speaker, I yield 1 minute to the gentleman from New Jersey (Mr. Garrett).

Mr. SMITH of Texas. Madam Speaker, I yield 2 minutes to the gentleman from Iowa (Mr. King), another valued member of the Judiciary Committee, and also the ranking member of one of its subcommittees.

Mr. SMITH of Texas

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

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, I am prepared to yield back as soon as the gentlewoman from California is ready to close. Mr. Speaker, I yield back the balance of my time.