Mel Watt

Mr. WATT of North Carolina

Mr. WATT of North Carolina. Madam Chairman, I yield myself 30 seconds for the benefit of explaining to the Members where we are in the process so that people will know what we are doing. We debated this bill yesterday and had part of the debate on the Watt-Rothman amendment yesterday. We now have 10 minutes on each side to further debate the Watt-Rothman amendment. Then there will be a vote on the Watt-Rothman amendment, and then a vote on final passage, for those who are trying to schedule their time at this point. Madam Chairman, I reserve the balance of my time.

Mr. WATT of North Carolina. Madam Chairman, I yield 30 seconds to the gentleman from Virginia (Mr. Moran).

Mr. WATT of North Carolina. Madam Chairman, I yield 4 minutes to the gentleman from New Jersey (Mr. Rothman).

Mr. WATT of North Carolina. Madam Chairman, might I inquire how much time remains on each side?

Mr. WATT of North Carolina. Madam Chairman, I yield myself as much time as I may consume. Madam Chairman, let me first say to my colleagues what this dispute is not about. First of all, both sides of the aisle, the gentleman from Texas (Mr. Smith) and I agree that shuffling private citizens back and forth between two courts is not acceptable. I understand the historical reason that it was done. In fact, it was done because the Court of Federal Claims could have jurisdiction over the claims part of an issue, but they did not have the constitutional authority to declare statutes unconstitutional. So the reason that we have this two-party arrangement now, where the Court of Federal Claims has part of the jurisdiction and the U.S. District Court has part of the jurisdiction, is for the very constitutional reason that I am offering this amendment. But both of us agree that that should be eliminated. This is not about taking jurisdiction away from the U.S. Court of Federal Claims. I would love for them to have jurisdiction over this matter. If they had the constitutional authority to deal with it, it would not matter to me who had jurisdiction over the issue. So why are we here? We are trying to find a solution which is a constitutional solution. Why is that important? Go back to the founding of our country when our Constitution was first written. The Founding Fathers wrote this: That King George has made judges dependent on his will alone for the tenure of their offices and the amount of payment of their salaries. That was unacceptable to the Founding Fathers. That is why they set up an independent judiciary in our country, so that we would not have to address that issue. They set up some other courts, like the Court of Federal Claims. Yes, it is a good court. No problem with the court. But they did not give the judges over there lifetime tenure and guaranteed salaries that separates them out and gives them independence on these issues. They just do not have that authority. So we are trying to find a place that we can send private property takings and all of the issues related to those private property takings where they can get a constitutional hearing in one location. The only place to do that is the United States District Court, because it is an Article III court set up under the Constitution for that kind of purpose. It makes you wonder why my colleagues on the other side might be favoring giving this responsibility to the Court of Federal Claims. There are two theories I have. Either they want the issue more than they want a solution; that is one possibility. The other possibility is that all 14 judges on the Court of Federal Claims are Reagan/Bush appointees. And 11 out of the 13 appeals judges are Reagan/Bush appointees. So all of a sudden, this becomes a political issue rather than a problem to be solved, which is what we should be about in this body. The President has said, the administration has said that they are going to recommend aggressively that this bill be vetoed if it is passed in an unconstitutional form such as the one now. They have said we will sign this bill if the Watt/Rothman amendment is passed. Environmental groups, others who have opposed this bill have said, we encourage people to vote for the bill if the Watt/Rothman amendment is passed. It will solve the problem. It will repose the responsibility in a constitutional court. That is what we thought we were striving to do, to solve the problem. But there are some people in this body who would rather have the issue to complain about and raise it at that level than they would to solve the problem. I ask my colleagues to support this amendment, make this bill vetoproof. Let us get it passed. Let us solve the problem and quit worrying about where the issue is.

Mr. WATT of North Carolina. Madam Chairman, I demand a recorded vote.

Mr. WATT of North Carolina. Mr. Speaker, I demand a recorded vote.

Mr. WATT of North Carolina

Mr. WATT of North Carolina. Mr. Chairman, I move to strike the last word. Mr. Chairman, I would inquire of my friend from Texas whether he is intending to amend, is asking unanimous consent to amend his amendment? I thought we had talked about that.

Mr. WATT of North Carolina. Mr. Chairman, I offer an amendment in the nature of a substitute.

Mr. WATT of North Carolina. Mr. Chairman, I thank the gentleman for answering that question. Mr. Chairman, this certainly improves the gentleman's bill, this amendment. I support his amendment fully. It does not go all the way to address the constitutional issue, unfortunately, but it addresses the issue of expedited review of cases, and that needed to be addressed, and I am glad he is doing it. I encourage my colleagues to support the amendment. Mr. Chairman, I yield back the balance of my time.

Mr. WATT of North Carolina. I yield to the gentleman from Texas.

Mr. WATT of North Carolina. Mr. Chairman, I yield myself such time as I may consume to respond to the gentleman from Texas (Mr. Green). We solved the problem in a constitutional way by the Watt-Rothman amendment. I hope the gentleman will support my amendment. I hope the House will support my amendment and we can solve this shuffle in a constitutional way. That is all we are trying to do. I hope my colleagues will join us and help us do it. Mr. Chairman, I yield back the balance of my time.

Mr. WATT of North Carolina. Mr. Chairman, this amendment, now that the chairman of our subcommittee has made his amendment, the primary purpose would be to remove the discretion for a litigant to go to the Court of Federal Claims or to the U.S. district court, which I think is an unconstitutional discretion, and still give to a litigant the right to take their claim to the U.S. district court, an Article III court, and have their claim determined in its entirety. They could litigate the constitutionality of the taking; they can litigate the amount of compensation they are due as a result of the taking. All of that can be addressed in the United States District Court. In our opinion, to give a litigant the option of going to the U.S. Court of Claims, the Federal Court of Claims, is an unconstitutional act, because those judges are not Article III judges. I have already summarized that. I will not belabor that point anymore. I do have a severe concern that the reason that this option is being offered under the bill is for political purposes. I misstated in my earlier statement, all of the 14 active judges of the Court of Federal Claims and 9 of the 11 active judges on the Court of Appeals from that court are either Reagan or Bush appointees. I think that is really what is giving this option for people to go to the Court of Federal Claims is all about. We ought not to worry about political objective, we ought to be worrying about getting a bill that solves the problem in a constitutional way. I hope that my colleagues will support my amendment. Mr. Chairman, Assistant Attorney General Eleanor Acheson stated precisely why, in her recent testimony before the Subcommittee on Immigration and Claims, we should oppose this amendment. She said, The Court of Federal Claims has developed expertise in resolving and streamlining takings litigation, and in the other complex cases within its specialized docket. She also stated that, Takings claims may involve extensive discovery and trial on significant issues with which a Federal District Court has little experience. We should not discard the valuable resource of the Court of Federal Claims' expertise or its large body of case law, which has been compiled over many years. Property owners across America have the right to be heard in either the Claims Court or the Federal District Court. Why not give property owners the option of bringing a takings claim in a U.S. District Court or the Court of Federal Claims? If the owner wants to pursue his or her claim in a court close to home, the individual can choose a Federal 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. My colleague is concerned that Congress cannot constitutionally give the Claims Court the authority to grant injunctive relief, but the Court of Federal Claims already has the power to grant injunctive relief in various areas, totaling about 40 percent of its docket, as I noted a minute ago. Further, the Supreme Court has provided us with a test to judge whether Congress can give the Court of Federal Claims the power of injunctive relief in different circumstances. If we apply these tests found in the cases of Northern Pipeline and Commodity Futures, the result is very clear. Congress can grant the Claims Court the powers of injunctive relief in Fifth Amendment takings cases. There are some, and I certainly do not put my friend, the gentleman from North Carolina (Mr. Watt) in this category, but there are some who say they are for property rights. What they mean is that they are for property rights in the abstract, for property rights theoretically, for property rights idealistically, but when it comes to helping real people with real problems, somehow they can never be found. This bill is a fair, straightforward, commonsense 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 would destroy that option for every property owner in America. The underlying bill is supported by such organizations as the National Association of Realtors, the National Association of Home Builders, and the U.S. Chamber of Commerce. These groups also oppose the weakening amendments, such as this one. So I hope tomorrow, when we ultimately vote on this amendment, there will be strong bipartisan opposition to it. Mr. Chairman, I move that the Committee do now rise.

Mr. WATT of North Carolina. I do not think that concern has been addressed at all. I assume the attorneys general are still concerned about the constitutional ramifications of this bill. I have not seen anything that eliminates that concern. Let me tell my colleagues how strongly our Founding Fathers felt about this. Our Founding Fathers actually were of the opinion that even Article III judges could not overrule a statute that was passed by Congress. That is how far away they wanted to put them. Invalidation of Federal statutes is a very, very serious thing. Our Founding Fathers were so convinced of that that Article III judges who serve in the independent judicial branch of our government were not given that authority. It was not until the landmark case of Marbury v. Madison that even Article III judges were given the authority to invalidate a legislative enactment. Now we are going another step and giving that authority, under this bill, to judges who are appointed for 15 years. They do not have lifetime appointment. They are not independent. Now you have got to wonder why that is happening. That brings me to my second point; that is, that this bill will encourage forum shopping. You should say, as an initial proposition, ``Well, it should not matter whether a judge is a court of Federal claims judge or a U.S. district court judge, the result ought to be the same.'' It should be. But it should not matter to my colleagues over here, either. That is why I am offering the amendment to make all of these claims come to the United States district court, an Article III court that has the constitutional authority to dispose of both the compensation issue and the constitutionality, the legal substantive issue. But why do my colleagues want court of Federal claims judges to hear this? Let me tell Members my speculation about it. There are 14 judges on the court of Federal claims. Nine of the eleven active judges on the court of Federal claims were appointed by Presidents Reagan or Bush. Is that accidental, or are we looking to encourage people to go to a court that has a judge in it that was appointed by Republicans? That ought not to be our objective here. If that is what we are trying to achieve, we ought to pack up and go home if we are willing to sacrifice constitutionality for partisanship. If that is the reason we are doing this, that is absolutely unforgivable. Now, my colleague is going to offer an amendment that addresses the third concern I have. The bill, as it is now postured, would delay expedited consideration of a lot of these new takings laws, the environmental rules, so that under the bill as it is currently written, last fall when the Environmental Protection Agency issued new air quality and ozone standards, you could get an immediate decision with expedited review within 60 to 90 days; this bill as it is currently written would wipe out that expedited review. A number of other examples that I could give you, I will not go into that, because fortunately my colleague has seen the light on that issue and is going to offer an amendment to correct that problem. I am going to support that amendment. I want to move on to the fourth point, my fourth concern about this bill. That is, this whole notion that we are trying to speed up the process and get people justice quickly. How long is it going to take for this new system, that I have already told you is unconstitutional, to work its way through the system and up to the Supreme Court, and the Supreme Court to hear arguments and come back down, and somebody to take it back up? We will be here 5 years from now trying to decide whether this is constitutional or not, and I just told you it was unconstitutional. It should not be what we are doing. Because there are going to be some real live litigants involved in that, and the cost to them of going all the way to the Supreme Court to have the court say that this is an unconstitutional statute should not have to be borne by individual citizens in this country. If we value getting to an expedited result, as my colleague says, and with which I agree, we should correct this problem in a constitutional way. Put all of the jurisdiction in the United States district court. I do not know what impact that will have on the outcome of cases. That depends on individual cases. I do not care what outcome it has on individual cases. What I do care about is that we do this in a way that is constitutional. The final thing I care about is that we solve this problem, because fairness and equity, as my colleague from Texas has indicated, ought to always be the hallmark of our judicial system. The Narromores that he talked so much about ought not to be subjected to the shuffle back and forth. The Joneses, the Smiths, no citizen ought to be subjected to that kind of shuffle. But guess what? In an effort to maintain this as an issue, my colleagues are willing to pass a bill which the President has already indicated is going to be vetoed. Let me reaffirm, I have the letter right here in my hand. It says, ``The administration is fully committed to the protection of private property, including the payment of just compensation under the Fifth Amendment when private property is taken for public use. The administration is also committed to streamlining and expediting Federal court litigation. However, H.R. 992 presents constitutional concerns, would waste valuable judicial resources, and would lead to significant instability in the law.'' And then it goes on to say, ``The Attorney General, the Secretary of the Interior, the Administrator of the Environmental Protection Agency, and the Chair of the Council on Environmental Quality would recommend that the President veto H.R. 992, as reported by the House Committee on the Judiciary.'' Now, we can either pass a bill and get it vetoed and preserve the debate, or we can pass a bill that is constitutional and solve this problem. We have the choice right here in this body, and I hope that my colleagues here will exercise that choice in a responsible way. I tried to convince my colleague to do that, but he thinks for some reason, the Court of Federal Claims, there is something sacrosanct about it. Mr. Chairman, I reserve the balance of my time.

Mr. WATT of North Carolina. I yield to the gentleman from Texas.

Mr. WATT of North Carolina. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, let me start by addressing the last two speakers, the gentleman from Georgia and the gentleman from Texas. First of all, I want to say once again and make it absolutely clear that the problem that this bill addresses, the shuffle back and forth between the U.S. court of claims and the U.S. district court, is one that should be done away with. No citizen should be required to go to two separate courts to deal with the same issue. This bill gives a person whose property has been taken or who claims to have had their property taken or the value diminished in some way the right to take that claim either to the U.S. Federal court of claims or to take it to the U.S. district court. Those are two entirely different courts. The U.S. district court, under the Constitution, is what is called an Article III court. An Article III court is one in which the judges are given, once they are appointed to the bench, lifetime tenure. The reason that they are given lifetime tenure is that we want them to be completely independent of the executive branch of the government, and we want them to be completely independent of the legislative branch of the government. We do not want politics or favoritism or any threat to intervene in their decision-making, so we give them lifetime tenure. That is an Article III judge. The U.S. Federal court of claims, or the court of Federal claims, as it is now called, the judges are appointed for a 15-year term. They do not have the level of independence that an Article III judge has because their tenure is shorter. So you have Article III judges with lifetime tenure; you have Article I judges with a 15-year term. Now, most folks, when I come to this body and take up for the Constitution, say, that Mel Watt just gets overly worried about the Constitution. So I want to put this in context. In the drafting of the Declaration of Independence, the Founding Fathers complained that ``King George has made judges dependent on his will alone for the tenure of their offices and the amount and payment of their salaries.'' It was for that reason that we wrote into our Constitution the provision for Article III judges. There is an historical basis. We were trying to remove those Article III judges from any influence that the executive branch of the government could exercise over them, and we did it by giving them lifetime tenure so that the executive branch or the legislative branch could not go over and interfere with those folks. They are supposed to be independent. Now, when you then turn around and say, ``Okay, we're going to give an Article I judge the authority to declare a statute unconstitutional,'' you have stepped over the line. That is what this bill does. It says we are going to give the court of Federal claims judges the authority to declare acts of Congress unconstitutional. The Constitution will not allow that; plain and simple, it will not allow it. I am not only expressing my opinion on this, I am expressing the administration's opinion on it. They have researched it and written us and said, we will not sign this bill for that reason, among others. I am expressing the opinion of 40 attorneys general whose letter I am holding in my hand, not only Democrats but conservative Republican attorneys general who expressed the exact same opinion.

Mr. WATT of North Carolina. Mr. Chairman, I yield myself 30 seconds to respond to some of the gentleman's rhetorical questions. I share the gentleman's objective. He should be aware that there is a solution, there is a constitutional solution that would eliminate the shuffle. We are not opposed to eliminating the shuffle. Our solution would be to give jurisdiction over the monetary relief and the legal issues to the U.S. District Court, which is an Article III court that has the constitutional authority to accept all of that jurisdiction. That will eliminate the shuffle completely. So I hope the gentleman will support my amendment when it is offered, my amendment with the gentleman from New Jersey (Mr. Rothman). Mr. Chairman, I yield 3 minutes to the gentlewoman from Texas (Ms. Jackson-Lee). (Ms. JACKSON-LEE of Texas asked and was given permission to revise and extend her remarks.)

Mr. WATT of North Carolina. Mr. Chairman, I yield 5 minutes to the gentleman from New York (Mr. Boehlert). (Mr. BOEHLERT asked and was given permission to revise and extend his remarks.)

Mr. WATT of North Carolina. Mr. Chairman, I yield myself such time as I may consume. I want to join with the gentleman from New York (Mr. Solomon) in paying a tribute to my colleague, the gentleman from Texas (Mr. Smith), for bringing a bill to the floor designed to address a serious issue. The difference between that gentleman's part of this debate and my part of the debate is not in the issue of whether a problem exists. We both agree that citizens of our country should not be shuffled back and forth from one court to another. That is not an area of disagreement that we have. The area of disagreement is how we solve that shuffle and eliminate the necessity of having to shuffle back and forth. Our position on this side is that the problem needs to be solved, deserves to be solved, but must be solved in a constitutional way. And our position is that the bill of the gentleman from Texas does not resolve this issue in a constitutional way, and I will elaborate on that some more later in this debate. Second, our position is that the solution that is proposed under this bill, in addition to being an unconstitutional solution, is a solution that would encourage forum shopping, and that is something that we should not be encouraging as a Congress. Third, the solution that has been offered under this bill, and I believe the gentleman from Texas is going to correct this by offering an amendment which we will support, but as the bill is currently structured, the solution that is currently proposed would eliminate some expedited review under the law and delay disposition of cases that now get expedited review and consideration, and we think that is a real problem. The fourth problem that we have with this proposed solution is that, as the gentleman from Texas has asserted, we want to speed up the process of getting justice and decisions in these cases. We do not want to slow down the process. And we believe this solution will simply slow down the process. Because if there is a question on the resolution, about the constitutionality of it, nothing is going to happen in this area until at least one or more cases moves through the process and moves on up to the Supreme Court and the Supreme Court decides this issue, which is going to, for a period of time, put us all on hold in these cases. And we think that is not justified. The final argument we will make, and I want to flesh all of these out later in the discussion, is that if we are looking for a solution to this problem, we ought to find one that the administration will support. The administration does not believe that the solution that is offered under this bill is a constitutional solution or a reasonable way to address what they agree is a problem, and they have indicated that the President will veto this bill. So we can either have a bill which solves the problem or we can create an atmosphere that preserves the issue for continuing debate, and I thought our objective here was to solve the problem, not just preserve the issue. Those are the five points that I want to try to develop this evening. Mr. Chairman, I reserve the balance of my time.

Mr. WATT of North Carolina

Mr. WATT of North Carolina. Mr. Speaker, I withdraw my reservation of objection.

Mr. WATT of North Carolina. Mr. Speaker, I just wanted to make sure what it was the gentleman just did.

Mr. WATT of North Carolina. I yield to the gentleman from Texas.

Mr. WATT of North Carolina. Mr. Speaker, reserving the right to object, I missed that.

Mr. WATT of North Carolina

Mr. WATT of North Carolina. Mr. Chairman, I thank my colleague from New York for yielding me this time. Let me make two points. First of all, I am a strong supporter of African development. Second of all, I have the greatest respect for the sponsors of this bill, as well as people who are opposed to the bill. Having said that, I want to rise in opposition to this bill. When I was growing up, there was a saying that if it looks like a duck and quacks like a duck, it probably is a duck. But every once in a while, what looks like a duck and quacks like a duck is a decoy, and this bill, it seems to me, is a decoy at this point. It falls short of being a true development bill for Africa in several respects. There were opportunities to improve this bill and actually make it a duck if the Committee on Rules had allowed amendments to be offered on the floor of the House. They would have addressed worker rights and human rights. They would have addressed the control of the African countries over development. They would have addressed the textile and apparel concerns of people in this country. Unfortunately, the Committee on Rules saw fit not to make those proposed amendments in order on this bill. Therefore, the bill must be considered as it is currently written. Right now, the bill falls short of being a bill that I believe merits support, and I encourage my colleagues to vote against the bill.

Mr. WATT of North Carolina

Mr. WATT of North Carolina. Mr. Speaker, I thank the gentleman for yielding me the time. I rise in opposition to the rule. There has been a lot of discussion this morning about the merits or lack of merits of particular amendments. Unfortunately, a number of those amendments will never get to be debated on the floor, and that is why we should be opposing the rule. If the Committee on Rules had made various amendments in order for debate, we could have debated and understood the pros and cons of those amendments and the body could have worked its will. That is what democracy is all about. We could have tried to improve this bill. And if the majority had voted against our improvements, then at least the opportunity would have been provided. That is what democracy is all about. Instead, the Committee on Rules decided that it was going to enact its own fast track legislation. Basically what it said was, we are not going to give you an opportunity to allow democracy to work. We are going to bring this bill to the floor, not give you an opportunity to offer amendments, not give you an opportunity for debate, not give the body the opportunity to work its will on a majority basis. We are going to deprive you of your rights as Members of this body. That, in and of itself, regardless of the merits of the amendments, is enough to justify a vote against the rule. I urge my colleagues to oppose this rule, send it back, send out these amendments and let us debate them on the floor.