H. Rept. 109-749 - 109th Congress (2005-2006)
January 02, 2007, As Reported by the Judiciary Committee

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House Report 109-749 - REPORT ON THE ACTIVITIES of the COMMITTEE ON THE JUDICIARY of the HOUSE OF REPRESENTATIVES during the ONE HUNDRED NINTH CONGRESS pursuant to Clause 1(d) Rule XI of the Rules of the House of Representatives




[House Report 109-749]
[From the U.S. Government Printing Office]



                                     

                                                 Union Calendar No. 451

109th Congress, 2d Session - - - - - - - - - - - - House Report 109-749


                        REPORT ON THE ACTIVITIES

                                 of the

                       COMMITTEE ON THE JUDICIARY

                                 of the

                        HOUSE OF REPRESENTATIVES

                               during the

                       ONE HUNDRED NINTH CONGRESS

                              pursuant to

                Clause 1(d) Rule XI of the Rules of the
                        House of Representatives

<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>


January 2, 2007.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed


       REPORT ON THE ACTIVITIES OF THE COMMITTEE ON THE JUDICIARY
                                     

                                                 Union Calendar No. 451

109th Congress, 2d Session - - - - - - - - - - - - House Report 109-749


                        REPORT ON THE ACTIVITIES

                                 of the

                       COMMITTEE ON THE JUDICIARY

                                 of the

                        HOUSE OF REPRESENTATIVES

                               during the

                       ONE HUNDRED NINTH CONGRESS

                              pursuant to

                Clause 1(d) Rule XI of the Rules of the

                        House of Representatives

<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>


January 2, 2007.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed
                       COMMITTEE ON THE JUDICIARY
                        House of Representatives
                       ONE HUNDRED NINTH CONGRESS

                                 ------                                

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR S. SMITH, Texas                RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
JOHN N. HOSTETTLER, Indiana          WILLIAM DELAHUNT, Massachusetts
BOB INGLIS, South Carolina           ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL E. ISSA, California          LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
DARRELL E. ISSA, California
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, Chief of Staff-General Counsel
               Perry H. Apelbaum, Minority Chief Counsel

                                 ------                                

            Subcommittees of the Committee on the Judiciary

                                 ------                                



                Crime, Terrorism, and Homeland Security

                 HOWARD COBLE, North Carolina, Chairman

DANIEL E. LUNGREN, California        ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin                SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida                  MAXINE WATERS, California
STEVE CHABOT, Ohio                   MARTIN TI. MEEHAN, Massachusetts
BOB GOODLATTE, Virginia              WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida                  ANTHONY D. WEINER, New York
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas

                                 ------                                



                   Commercial and Administrative Law

                      CHRIS CANNON, Utah, Chairman
HOWARD COBLE, North Carolina         MELVIN L. WATT, North Carolina
TRENT FRANKS, Arizona                WILLIAM D. DELAHUNT, Massachusetts
STEVE CHABOT, Ohio                   CHRIS VAN HOLLEN, Maryland
MARK GREEN, Wisconsin                JERROLD NADLER, New York
J. RANDY FORBES, Virginia            DEBBIE WASERMAN SCHULTZ, Florida
LOUIE GHOMERT, Texas

                                 ------                                



            Courts, The Internet, and Intellectual Property

                    LAMAR S. SMITH, Texas, Chairman
HENRY J. HYDE, Illinois              HOWARD BERMAN, California
ELTON GALLEGLY, California           JOHN CONYERS, California
BOB GOODLATTE, Virginia              RICK BOUCHER, Virginia
WILLIAM L. JENKIN, Tennessee         ZOE LOFGREN, California
SPENCER BACHUS, Alabama              MAXINE WATERS, California
BOB INGLIS, South Carolina           MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida                  ROBERT WEXLER, Florida
DARRELL E. ISSA, California          ANTHONY D. WIENER, New York
CHRIS CANNON, Utah                   ADAM B. SCHIFF, California
MIKE PENCE, Indiana                  LINDA T. SANCHEZ, California
J. RANDY FORBES, Virginia

                                 ------                                



                Immigration, Border Security, and Claims

                 JOHN N. HOSTETTLER, Indiana, Chairman
STEVE KING, Iowa                     SHEILA JACKSON LEE, Texas
LOUIE GOHMERT, Texas                 HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   ZOE LOFGREN, California
ELTON GALLEGLY, California           LINDA T. SANCHEZ, California
BOB GOODLATTE, Virginia              MAXINE WATERS, California
DANIEL E. LUNGREN, California        MARTIN T. MEEHAN, Massachusetts
JEFF FLAKE, Arizona
ROBERT D. INGLIS, South Carolina
DARRELL E. ISSA, California


                                 ------                                

                              Constitution

                      STEVE CHABOT, Ohio, Chairman
TRENT FRANKS, Arizona                JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee        JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama              ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana          MELVIN L. WATT, North Carolina
MARK GREEN, Wisconsin                CHRIS VAN HOLLEN, Maryland
STEVE KING, Iowa
TOM FEENEY, Florida
                         LETTER OF TRANSMITTAL

                              ----------                              

                          House of Representatives,
                                Committee on the Judiciary,
                                   Washington, DC, January 2, 2007.
Hon. Karen L. Haas,
Clerk of the House of Representatives,
Washington, DC.
    Dear Ms. Haas: Pursuant to clause 1(d) of rule XI of the 
Rules of the House of Representatives, I am transmitting the 
report on the activities of the Committee on the Judiciary of 
the U.S. House of Representatives in the 109th Congress.
            Sincerely,
                             F. James Sensenbrenner, Jr., Chairman.


                                                 Union Calendar No. 451
109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     109-749

======================================================================



 
       REPORT ON THE ACTIVITIES OF THE COMMITTEE ON THE JUDICIARY

                                _______
                                

January 2, 2007.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

             Jurisdiction of the Committee on the Judiciary

    The jurisdiction of the Committee on the Judiciary is set 
forth in Rule X, 1.(l) of the rules of the House of 
Representatives for the 109th Congress:

           *       *       *       *       *       *       *


     Rule X.--Establishment and Jurisdiction of Standing Committees


                 THE COMMITTEES AND THEIR JURISDICTION

    1. There shall be in the House the following standing 
committees, each of which shall have the jurisdiction and 
related functions assigned to it by this clause and clauses 2, 
3, and 4. All bills, resolutions, and other matters relating to 
subjects within the jurisdiction of the standing committees 
listed in this clause shall be referred to those committees, in 
accordance wtih clause 2 of rule XII, as follows:

           *       *       *       *       *       *       *

    (l) Committee on the Judiciary.
          (1) The judiciary and judicial proceedings, civil and 
        criminal.
          (2) Administrative practice and procedure.
          (3) Apportionment of Representatives.
          (4) Bankruptcy, mutiny, espionage, and 
        counterfeiting.
          (5) Civil liberties.
          (6) Constitutional amendments.
          (7) Criminal law enforcement.
          (8) Federal courts and judges, and local courts in 
        the Territories and possessions.
          (9) Immigration policy and non-border enforcement.
          (10) Interstate compacts generally.
          (11) Claims against the United States.
          (12) Meetings of Congress; attendance of Members, 
        Delegates, and the Resident Commissioner; and their 
        acceptance of incompatible offices.
          (13) National penitentiaries.
          (14) Patents, the Patent and Trademark Office, 
        copyrights, and trademarks.
          (15) Presidential succession.
          (16) Protection of trade and commerce against 
        unlawful restraints and monopolies.
                          Printed Hearings \1\

                          Serial No. and Title

                              ----------                              

    1. Implications of the Booker/Fanfan Decisions for the Federal 
Sentencing Guidelines. Subcommittee on Crime, Terrorism, and Homeland 
Security. February 10, 2005.
---------------------------------------------------------------------------
    \1\ Includes all hearings that were printed before Jan. 2nd, 2007. 
There were four hearings from the 109th Congress that had not been 
printed at the time that this report was filed, and thus are not 
included in this list.
---------------------------------------------------------------------------
    2. Trademark Dilution Revision Act of 2005. Subcommittee on Courts, 
the Internet, and Intellectual Property. February 17, 2005. (H.R. 683).
    3. Child Interstate Abortion Notification Act. Subcommittee on the 
Constitution. March 3, 2005. (H.R. 748).
    4. Immigration Enforcement Resources Authorized in the Intelligence 
Reform and Terrorism Prevention Act of 2004. Subcommittee on 
Immigration, Border Security, and Claims. March 3, 2006.
    5. Interior Immigration Enforcement Resources. Subcommittee on 
Immigration, Border Security, and Claims. March 10, 2005.
    6. Digital Music Licensing and Section 115 of the Copyright Act. 
Subcommittee on Courts, the Internet, and Intellectual Property. March 
8, 2006.
    7. Holmes Group, the Federal Circuit, and the State of Patent 
Appeals. Subcommittee on Courts, the Internet, and Intellectual 
Property. March 17, 2005.
    8. Immigration and the Alien Gang Epidemic: Problems and Solutions. 
Subcommittee on Immigration, Border Security, and Claims. April 13, 
2005.
    9. Digital Music Inoperability and Availability. Subcommittee on 
Courts, the Internet, and Intellectual Property. April 6, 2005.
    10. Reauthorization of the USA PATRIOT Act (Part 1). Full 
Committee. June 8, 2005.
    11. Committee Print Regarding Patent Quality Improvement (Parts 1 
and 2). Subcommittee on Courts, the Internet, and Intellectual 
Property. April 20, 28, 2005.
    12. USA PATRIOT Act: A Review for the Purpose of its Re-
authorization. Full Committee. April 6, 2005.
    13. Implementation of the USA PATRIOT Act: Prohibition of Material 
Support Under Sections 805 of the USA PATRIOT Act 6603 of the 
Intelligence Reform and Terrorism Prevention Act of 2004. Subcommittee 
on Crime, Terrorism, and Homeland Security. May 10, 2005.
    14. Implementation of the USA PATRIOT Act: Section 212 Emergency 
Disclosure of Electronic Communications to Protect Life and Limb. 
Subcommittee on Crime, Terrorism, and Homeland Security. May 5, 2005.
    15. Implementation of the USA PATRIOT Act: Effect of Section 203(b) 
and 203(d) on Information Sharing. Subcommittee on Crime, Terrorism, 
and Homeland Security. April 19, 2005.
    16. Implementation of the USA PATRIOT Act: Section 218, Foreign 
Intelligence Information (``The Wall''). Subcommittee on Crime, 
Terrorism, and Homeland Security. April 28, 2005.
    17. Implementation of the USA PATRIOT Act: Sections of the Act that 
Address the Foreign Intelligence Surveillance Act (FISA). (Parts 1 and 
2). Subcommittee on Crime, Terrorism, and Homeland Security. April 26, 
28, 2005.
    18. Implementation of the USA PATRIOT Act: Sections of the Act that 
Address Crime, Terrorism, and the Age of Technology, Sections 209, 217, 
and 220. Subcommittee on Crime, Terrorism, and Homeland Security. April 
21, 2005.
    19. Implementation of the USA PATRIOT Act: Sections 505 and 804. 
Subcommittee on Crime, Terrorism, and Homeland Security. May 26, 2005.
    20. Implementation of the USA PATRIOT Act: Sections 201, 202, 223, 
of the Act that Address Criminal Wiretaps, and Section 213 of the Act 
that Addresses Delayed Notice. Subcommittee on Crime, Terrorism, and 
Homeland Security. May 3, 2005.
    21. Protection of Lawful Commerce in Arms Act. Subcommittee on 
Commercial and Administrative Law. March 15, 2005. (H.R. 800).
    22. Fiscal Management Practices of the United States Commission on 
Civil Rights. Subcommittee on the Constitution. March 17, 2005.
    23. October 2005 Statutory Deadline for Visa Waiver Program 
Countries to Produce Security Passports: Why it Matters to Homeland 
Security. Subcommittee on Immigration, Border Security, and Claims. 
April 21, 2005.
    24. Patent Act of 2005. Subcommittee on Courts, the Internet, and 
Intellectual Property. June 9, 2005. (H.R. 2795).
    25. Public Performance Rights Organizations. Subcommittee on 
Courts, the Internet, and Intellectual Property. May 11, 2005.
    26. Industry Competition and Consolidation: The Telecom Marketplace 
Nine Years After the Telecom Act. Full Committee. April 20, 2005.
    27. Economic Development and Dormant Commerce Clause: The Lessons 
of Cuno v. Daimler Chrysler and Its Effect on State Taxation Affecting 
Interstate Commerce. Subcommittee on Commercial and Administrative Law 
jointly with the Subcommittee on the Constitution. May 24, 2005.
    28. Copyright Office Views on Music Licensing Reform. Subcommittee 
on Courts, the Internet, and Intellectual Property. June 21, 2005.
    29. Reauthorization of the USA PATRIOT Act (Part 2). Full 
Committee. June 10, 2005.
    30. Child Abuse and Neglect Database Act; Dru Sjodin National Sex 
Offender Public Database Act of 2005; Child Predator Act of 2005; 
Jessica Lunsford Act; Sex Offender Registration and Notification Act; 
Save Our Children: Stop the Violent Predators Against Children DNA Act 
of 2005; DNA Fingerprinting Act of 2005; Amie Zyla Act of 2005. (H.R. 
764, H.R. 95, H.R. 1355, H.R. 1505, H.R. 2423, H.R. 244, H.R. 2696, 
H.R. 2797).
    31. Protecting Our Nation's Children from Sexual Predators and 
Violent Criminals. Subcommittee on Crime, Terrorism, and Homeland 
Security. June 9, 2005.
    32. New ``Dual Missions'' of the Immigration Enforcement Agencies. 
Subcommittee on Immigration, Border Security, and Claims. May 5, 2005.
    33. Protection Against Sexual Exploitation of Children Act of 2005; 
and Prevention and Deterrence of Crimes Against Children Act of 2005. 
Subcommittee on Crime, Terrorism, and Homeland Security. June 7, 2005. 
(H.R. 2318, H.R. 2388).
    34. Intellectual Property Theft in China and Russia. Subcommittee 
on Courts, the Internet, and Intellectual Property. May 17, 2005.
    35. Illegal Immigration Enforcement and Social Security Protection 
Act of 2005. Subcommittee on Immigration, Border Security, and Claims. 
(H.R. 98).
    36. Responding to Organized Crimes Against Manufacturers and 
Retailers. Subcommittee on Crime, Terrorism, Homeland Security. March 
17, 2005.
    37. Can Congress Create a Race-Based Government? The 
Constitutionality of H.R. 309/S. 147. Subcommittee on the Constitution. 
July 19, 2005.
    38. Department of Homeland Security to Examine the Security of the 
Nation's Seaports and Cargo Entering Those Ports. Subcommittee on 
Crime, Terrorism, and Homeland Security. March 15, 2005.
    39. New Jobs in Recession and Recovery: Who are Getting Them and 
Who are Not? Subcommittee on Immigration, Border Security, and Claims. 
May 4, 2005.
    40. Appropriate Role of Foreign Judgements in the Interpretation of 
the Constitution of the United States. Subcommittee on the 
Constitution. July 19, 2005. (H. Res. 97).
    41. Defending America's Most Vulnerable: Safe Access to Drug 
Treatment and Child Protection Act of 2005. Subcommittee on Crime, 
Terrorism, and Homeland Security. April 12, 2005. (H.R. 1528).
    42. Mutual Fund Trading Abuses. Subcommittee on Commercial and 
Administrative Law. June 7, 2005.
    43. Federal Consent Decree Fairness Act. Subcommittee on Courts, 
the Internet, and Intellectual Property. June 21, 2005. (H.R. 1229).
    44. Secure Access to Justice and Court Protection Act of 2005. 
Subcommittee on Crime, Terrorism, and Homeland Security. April 26, 
2005. (H.R. 1751).
    45. U.S. Department of Justice Civil Rights Division: A Review of 
the Civil Rights Division for the purpose of the Reauthorization of the 
U.S. Department of Justice. Subcommittee on the Constitution. March 10, 
2005.
    46. Terrorist Death Penalty Enhancement Act of 2005; and 
Streamlined Procedures Act of 2005. Subcommittee on Crime, Terrorism, 
and Homeland Security. June 30, 2005. (H.R. 3060, H.R. 3035).
    47. Federal Prison Industries Competition in Contracting Act of 
2005. Subcommittee on Courts, the Internet, and Intellectual Property. 
July 1, 2005. (H.R. 2965).
    48. Review of U.S. Patent and Trademark Office Operations, 
including Analysis of General Accounting Office, Inspector General, and 
National Academy of Public Administration Reports. Subcommittee on 
Courts, the Internet, and Intellectual Property. September 8, 2005.
    49. The Diversity Visa Program. Subcommittee on Immigration, Border 
Security, and Claims. June 15, 2005.
    50. Gang Deterrence and Community Protection Act. Subcommittee on 
Crime, Terrorism, and Homeland Security. April 5, 2005.
    51. Lack of Worksite Enforcement & Employer Sanctions. Subcommittee 
on Immigration, Border Security, and Claims. June 21, 2005.
    52. Alien Gang Removal Act. Subcommittee on immigration, Border 
Security, and Claims. June 28, 2005. (H.R. 2933).
    53. An Amendment in the Nature of a Substitute to H.R. 2795, the 
``Patent Act of 2005''. Subcommittee on Courts, the Internet, and 
Intellectual Property. September 15, 2005.
    54. Immigration Removal Procedures Implemented in the Aftermath of 
September 11th Attacks. Subcommittee on Immigration, Border Security, 
and Claims. June 30, 2005.
    55. Implementation of the Bankruptcy Abuse Prevention and Consumer 
Protection Act of 2005. Subcommittee on Commercial and Administrative 
Law. July 26, 2005.
    56. Reducing Peer-to-Peer (P2P) Piracy on University Campuses: A 
Progress Update. Subcommittee on Courts, the Internet, and Intellectual 
Property. September 22, 2005.
    57. Pain of the Unborn. Subcommittee on the Constitution. November 
1, 2005.
    58. Sources and Methods of Foreign Nationals Engaged in Economic 
and Military Espionage. Subcommittee on Immigration, Border Security, 
and Claims. September 15, 2005.
    59. Improving Federal Court Adjudication of Patent Cases. 
Subcommittee on Courts, the Internet, and Intellectual Property. 
October 6, 2005.
    60. Supreme Court's Kelo Decision and Potential Congressional 
Responses. Subcommittee on the Constitution. September 22, 2005.
    61. Methamphetamine Epidemic Elimination Act. Subcommittee on 
Crime, Terrorism, and Homeland Security. September 27, 2005. (H.R. 
3889).
    62. Business Activity Tax Simplification. Subcommittee on 
Commercial and Administrative Law. September 27, 2005. (H.R. 1956)
    63. Dual Citizenship, Birthright Citizenship, and the Meaning of 
Sovereignty. Subcommittee on Immigration, Border Security, and Claims. 
September 29, 2005.
    64. To Prevent Certain Discriminatory Taxation of Natural Gas 
Pipeline Property. (H.R. 1369).
    65. Offender Re-entry: What is Needed to Provide Offenders with a 
Real Second Chance? Subcommittee on Crime, Terrorism, and Homeland 
Security. November 3, 2005.
    66. Second Chance Act of 2005. (Part 1). Subcommittee on Crime, 
Terrorism, and Homeland Security. November 3, 2005. (H.R. 1704).
    67. Federal Courts Jurisdiction Clarification Act. Subcommittee on 
Courts, the Internet, and Intellectual Property. November 15, 2005.
    68. Voting Rights Act: An Examination of the Scope and Criteria for 
Coverage Under the Special Provisions of the Act. Subcommittee on the 
Constitution. October 20, 2005.
    69. Voting Rights Act: Section 5-Preclearance Standards. 
Subcommittee on the Constitution. November 1, 2005.
    70. To Examine the Impact and Effectiveness of the Voting Rights 
Act. Subcommittee on the Constitution. October 18, 2005.
    71. Administrative Law, Process and Procedure Project. Subcommittee 
on Commercial and Administrative Law. November 1, 2005.
    72. To amend Title 4 of the United States Code to clarify the 
treatment of self-employment for purposes of the limitation on State 
taxation of retirement. Subcommittee on Commercial and Administrative 
Law. December 13, 2005. (H.R. 4019).
    73. How Illegal Immigration Impacts Constituencies: Perspectives 
from Members of Congress (Part 2). Subcommittee on Immigration, Border 
Security, and Claims. November 17, 2005.
    74. Voting Rights Act: Section 5-The Judicial Evolution of the 
Retrogression Standard. Subcommittee on the Constitution. November 9, 
2005.
    75. Voting Rights Act: The Continuing Need for Section 5. 
Subcommittee on the Constitution. October 25, 2005.
    76. How Illegal Immigration Impacts Constituencies: Perspectives 
from Members of Congress (Part 1). Subcommittee on Immigration, Border 
Security, and Claims. November 10, 2005.
    77. Voting Rights Act: Sections 6 and 8-The Federal Examiner and 
Observer Program. Subcommittee on the Constitution. November 15, 2005. 
Subcommittee on the Constitution. November 15, 2005.
    78. Voting Rights Act: Section 203-Bilingual Election Requirements 
(Part 2). Subcommittee on the Constitution. November 9, 2005.
    79. Voting Rights Act: Section 5 of the Act-History, Scope, and 
Purpose. Subcommittee on the Constitution. October 25, 2005.
    80. Content Protection in the Digital Age: The Broadcast Flag, 
High-Definition Radio, and the Analog Hole. Subcommittee on Courts, the 
Internet, and Intellectual Property. November 3, 2005.
    81. Olympic Family-Functional or Dysfunctional? Subcommittee on 
Immigration, Border Security, and Claims. June 9, 2005.
    82. Streamlined Procedures Act of 2005. Subcommittee on Crime, 
Terrorism, and Homeland Security. November 10, 2005. (H.R. 3035).
    83. Voting Rights Act: Section 203-Bilingual Election Requirements 
(Part 1). Subcommittee on the Constitution. November 8, 2005.
    84. Scope and Myths of Roe V. Wade. Subcommittee on the 
Constitution. March 2, 2006.
    85. Outgunned and Outmanned: Local Law Enforcement Confronts 
Violence Along the Southern Border. Subcommittee on Immigration, Border 
Security, and Claims jointly with the Subcommittee on Crime, Terrorism, 
and Homeland Security. March 2, 2006.
    86. Second Chance Act of 2005. (Part 2): An Examination of Drug 
Treatment Programs Needed to Ensure Successful Re-entry. February 8, 
2006. (H.R. 1704)
    87. Victims and the Criminal Justice System: How to Protect, 
Compensate, and Vindicate the Interests of Victims. Subcommittee on 
Crime, Terrorism, and Homeland Security. February 16, 2006.
    88. International IPR Report Card: Assessing U.S. Government and 
Industry Efforts to Enhance Chinese and Russian Enforcement of 
Intellectual Property Rights. Subcommittee on Courts, the Internet, and 
Intellectual Property. December 7, 2005.
    89. A Bill to Require Any Federal State Contract to Recognize Any 
Notarization Made by a Notary Public Licensed by a State Other than the 
State Where the Court is Located when Such Notarization Occurs In or 
Affects Interstate Commerce. Subcommittee on Courts, the Internet, and 
Intellectual Property. March 9, 2006. (H.R. 1458).
    90. Weak Bilateral Law Enforcement Presence at the U.S.-Mexico 
Border: Territorial Integrity and Safety Issues for American Citizens. 
Subcommittee on Immigration, Border Security, and Claims jointly with 
the Subcommittee on Crime, Terrorism, and Homeland Security. November 
17, 2005.
    91. Workplace Goods Job Growth and Competitiveness Act of 2005. 
Subcommittee on Commercial and Administrative Law. March 14, 2006. 
(H.R. 3509).
    92. Remedies for Small Copyright Claims. Subcommittee on Courts, 
the Internet, and Intellectual Property. March 29, 2006.
    93. Death Penalty Reform Act of 2006. Subcommittee on Crime, 
Terrorism, and Homeland Security. March 30, 2006. (H.R. 5040).
    94. Report on Orphan Works by the Copyright Office. Subcommittee on 
Courts, the Internet, and Intellectual Property. March 8, 2006.
    95. Should Congress Raise the H1-B Cap? Subcommittee on 
Immigration, Border Security, and Claims. March 30, 2006.
    96. Lobbying Accountability and Transparency Act of 2006. 
Subcommittee on the Constitution. April 4, 2006. (H.R. 4975).
    97. 10th Anniversary of the Congressional Review Act. Subcommittee 
on Commercial and Administrative Law. March 30, 2006.
    98. Personal Information Acquired by the Government from 
Information Resellers: Is there Need for Improvement? Subcommittee on 
Commercial and Administrative Law jointly with the Subcommittee on the 
Constitution. April 4, 2006.
    99. Patent Quality Enhancement in the Information-Based Economy. 
Subcommittee on Courts, the Internet, and Intellectual Property. April 
5, 2006.
    100. Patent Harmonization. Subcommittee on Courts, the Internet, 
and Intellectual Property. 2006.
    101. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting 
Rights Act Reauthorization and Amendments Act. (Part 1). Subcommittee 
on the Constitution. May 5, 2006. (H.R. 9).
    102. The Constitutional Line Item Veto. Subcommittee on the 
Constitution. April 27, 2006.
    103. Voting Rights Act: Evidence of Continued Need. (Volumes I to 
IV). Subcommittee on the Constitution. March 8, 2006.
    104. Patent Trolls: Fact or Fiction? Subcommittee on Courts, The 
Internet, and Intellectual Property. June 15, 2006.
    105. Private Property Rights Implementation Act of 2005. 
Subcommittee on the Constitution. June 8, 2006. (H.R. 1772).
    106. Cyber-Security Enhancement and Consumer Data Protection Act of 
2006. Subcommittee on Crime, Terrorism, and Homeland Security. May 11, 
2006. (H.R. 5318).
    107. Firearm Commerce Modernization Act; and NICS Improvement Act 
of 2005. Subcommittee on Crime, Terrorism, and Homeland Security. May 
3, 2006. (H.R. 1384, H.R. 1415).
    108. Discussion Draft of the Section 115 Reform Act (SIRA) of 2006. 
Subcommittee on Courts, the Internet, and Intellectual Property. May 
16, 2006.
    109. Network Neutrality: Competition, Innovation, and 
Nondiscriminatory Access. Taskforce on Telecom and Antitrust. April 25, 
2006.
    110. Energy Employees Occupational Illness Compensation Program 
Act: Are We Fulfilling the Promise We Made to these Cold War Veterans 
When We Created the Program? (Part 1). Subcommittee on Immigration, 
Border Security, and Claims. March 1, 2006.
    111. Physicians for Underserved Areas Act. Subcommittee on 
Immigration, Border Security, and Claims. May 18, 2006. (H.R. 4997)
    112. White Collar Enforcement: Attorney-Client Privilege and 
Corporate Waivers. Subcommittee on Crime, Terrorism, and Homeland 
Security. March 7, 2006.
    113. Firearms Corrections and Improvement Act. Subcommittee on 
Crime, Terrorism, and Homeland Security. March 28, 2006.
    114. Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE): 
Reforming Licensing and Enforcement Authorities. Subcommittee on Crime, 
Terrorism, and Homeland Security. March 28, 2006.
    115. Animal Fighting Prohibition Enforcement Act of 2005. 
Subcommittee on Crime, Terrorism, and Homeland Security. May 18, 2006. 
(H.R. 817).
    116. Criminal Restitution Improvement Act of 2006. Subcommittee on 
Crime, Terrorism, and Homeland Security. June 13, 2006. (H.R. 5673).
    117. The Need to Implement WHTI to Protect U.S. Homeland Security. 
Subcommittee on Immigration, Border Security, and Claims. June 8, 2006.
    118. Public Expression of Religion Act of 2005. Subcommittee on the 
Constitution. June 22, 2006. (H.R. 2679).
    119. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting 
Rights Act Reauthorization and Amendments Act (Part 2). Subcommittee on 
the Constitution. May 4, 2006. (H.R. 9).
    120. State Taxation of Interstate Telecommunications Services. 
Subcommittee on Commercial and Administrative Law. June 13, 2006.
    121. United States v. Booker: One Year Later--Chaos or Status Quo? 
Subcommittee on Crime, Terrorism, and Homeland Security. March 16, 
2006.
    122. Reckless Justice: Did the Saturday Night Raid of Congress 
Trample the Constitution? Committee on the Judiciary. May 30, 2006.
    123. Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE): 
Gun Show Enforcement (Part 1 & 2). Subcommittee on Crime, Terrorism, 
and Homeland Security. February 15, 28, 2006.
    124. Judicial Transparency and Ethics Enhancement Act of 2006. 
Subcommittee on Crime, Terrorism, and Homeland Security. June 26, 2006. 
(H.R. 5219).
    125. Animal Enterprise Terrorism Act. Subcommittee on Crime, 
Terrorism, and Homeland Security. May 23, 2006. (H.R. 4239).
    126. Equal Access to Justice Reform Act of 2005. Subcommittee on 
Courts, the Internet, and Intellectual Property. May 23, 2006. (H.R. 
435).
    127. Should We Embrace the Senate's Grant of Amnesty to Millions of 
Illegal Aliens and Repeat the Mistakes of the Immigration Reform and 
Control Act of 1986? Subcommittee on Immigration, Border Security, and 
Claims. July 18, 2006.
    128. Internet Gambling Prohibition Act of 2006. Subcommittee on 
Crime, Terrorism, and Homeland Security. April 5, 2006. (H.R. 4777).
    129. Reid-Kennedy Bill: The Effect on American Workers' Wages and 
Employment Opportunities. Committee on the Judiciary. August 29, 2006.
    130. Whether Attempted Implementation of the Reid-Kennedy 
Immigration Bill Will Result in an Administrative and National Security 
Nightmare. Subcommittee on Immigration, Border Security, and Claims. 
July 27, 2006.
    131. Electronic Surveillance Modernization Act. Subcommittee on 
Crime, Terrorism, and Homeland Security. September 12, 2006. (H.R. 
5825).
    132. Reauthorization of the U.S. Department of Justice: Executive 
Office for U.S. Attorneys, Civil Division, Environment and Natural 
Resources Division, Executive Office for U.S. Trustees, and Office of 
the Solicitor General. Subcommittee on Commercial and Administrative 
Law. April 26, 2006.
    133. The 60th Anniversary of the Administrative Procedure Act: 
Where Do We Go From Here? Subcommittee on Commercial and Administrative 
Law. July 25, 2006.
    134. Regulatory Flexibility Improvements Act. Subcommittee on 
Commercial and Administrative Law. July 20, 2006.
    135. How Does Illegal Immigration Impact American Taxpayers and 
Will the Reid-Kennedy Amnesty Worsen the Blow? Committee on the 
Judiciary. August 2, 2006.
    136. Legislative Proposals to Update the Foreign Intelligence 
Surveillance Act (FISA). Subcommittee on Crime, Terrorism, and Homeland 
Security. September 9, 2006. (H.R. 4976, H.R. 5113, H.R. 5371, H.R. 
5825, S. 2453, S. 2455).
    137. United States Department of Justice. Committee on the 
Judiciary. April 6, 2006.
    138. A Bill to Provide Protection for Fashion Design. Subcommittee 
on Courts, the Internet, and Intellectual Property. July 27, 2006. 
(H.R. 5005).
    139. Energy Employees Occupational Illness Compensation Program 
Act: Are We Fulfilling the Promise We Made to These Cold War Veterans 
When We Created the Program? (Part III). Subcommittee on Immigration, 
Border Security, and Claims. July 20, 25, 2006.
    140. District of Columbia Fair and Equal House Voting Rights Act of 
2006. Subcommittee on the Constitution. September 14, 2006. (H.R. 
5388).
    141. Impeaching Manuel L. Real, a Judge of the United States 
District Court for the Central District of California, for High Crimes 
and Misdemeanors. Subcommittee on Courts, the Internet, and 
Intellectual Property. September 21, 2006. (H.Res. 916).
    142. Is the Reid-Kennedy Bill a Repeat of the Failed Amnesty of 
1986? Committee on the Judiciary. September 1, 2006.
    143. Nonadmitted and Reinsurance Reform Act of 2006. Subcommittee 
on Commercial and Administrative Law. September 19, 2006. (H.R. 5637).
    144. Implementation of the Crime Victims' Rights Provisions of the 
Justice for All Act. Subcommittee on the Constitution. June 21, 2006.
    145. Legal Services Corporation: A Review of Leasing Choices and 
Landlord Relations. Subcommittee on Commercial and Administrative Law. 
June 28, 2006.
    146. Americans with Disabilities Act: Sixteen Years Later. 
Subcommittee on the Constitution. September 13, 2006.
    147. Should Mexico Hold Veto Power Over U.S. Border Security 
Decisions? Committee on the Judiciary. August 17, 2006.
    148. Need for European Assistance to Colombia for the Fight Against 
Illicit Drugs. Subcommittee on Crime, Terrorism, and Homeland Security 
jointly with the Subcommittee on the Western Hemisphere, Committee on 
International Relations. September 21, 2006.
    149. Is the Labor Department Doing Enough to Protect U.S. Workers? 
Subcommittee on Immigration, Border Security, and Claims. June 22, 
2006.
    150. A Bill to Amend Title 35, United States Code, to Conform 
Certain Filing Provisions Within the Patent and Trademark Office. 
Subcommittee on Courts, the Internet, and Intellectual Property. 
September 14, 2006. (H.R. 5120).
    151. Energy Employees Occupational Illness Compensation Program 
Act: Are We Fulfilling the Promise We Made to These Cold War Veterans 
When We Created the Program? (Part II). Subcommittee on Immigration, 
Border Security, and Claims. May 4, 2006.
    152. Administrative Law, Process and Procedure Project for the 21st 
Century. Subcommittee on Commercial and Administrative Law. November 
14, 2006.
    153. Reid-Kennedy Bill's Amnesty: Impacts on Taxpayers, Fundamental 
Fairness and the Rule of Law. Committee on the Judiciary. August 24, 
2006.
    154. Preventing Harassment Through Outbound Number Enforcement 
(PHONE) Act. Subcommittee on Crime, Terrorism, and Homeland Security. 
November 15, 2006. (H.R. 5304).
    155. Privacy in the Hands of the Government: The Privacy Officer 
for the Department of Homeland Security, and the Privacy Officer for 
the Department of Justice. Subcommittee on Commercial and 
Administrative Law. May 17, 2006.
                       COMMITTEE ON THE JUDICIARY

   F. JAMES SENSENBRENNER, Jr., 
      Wisconsin, Chairman \1\

JOHN CONYERS, Jr., Michigan \2\      HENRY J. HYDE, Illinois
HOWARD L. BERMAN, California         HOWARD COBLE, North Carolina
RICK BOUCHER, Virginia               LAMAR S. SMITH, Texas
JERROLD NADLER, New York             ELTON GALLEGLY, California
ROBERT C. SCOTT, Virginia            BOB GOODLATTE, Virginia
MELVIN L. WATT, North Carolina       STEVE CHABOT, Ohio
ZOE LOFGREN, California              DANIEL E. LUNGREN, California
SHEILA JACKSON LEE, Texas            WILLIAM L. JENKINS, Tennessee
MAXINE WATERS, California            CHRIS CANNON, Utah
MARTIN T. MEEHAN, Massachusetts      SPENCER BACHUS, Alabama
WILLIAM DELAHUNT, Massachusetts      JOHN N. HOSTETTLER, Indiana
ROBERT WEXLER, Florida               BOB INGLIS, South Carolina
ANTHONY D. WEINER, New York          MARK GREEN, Wisconsin
ADAM B. SCHIFF, California           RIC KELLER, Florida
LINDA T. SANCHEZ, California         DARRELL E. ISSA, California
CHRIS VAN HOLLEN, Maryland           JEFF FLAKE, Arizona
DEBBIE WASSERMAN SCHULTZ, Florida \3\MIKE PENCE, Indiana
                                     J. RANDY FORBES, Virginia
                                     STEVE KING, Iowa
                                     TOM FEENEY, Florida
                                     DARRELL E. ISSA, California
                                     TRENT FRANKS, Arizona
                                     LOUIE GOHMERT, Texas

\1\ F. James Sensenbrenner, Jr. elected to the Committee as Chairman 
pursuant to House Resolution 32, approved by the House January 6, 2005.
Republican Members elected to the Committee pursuant to House 
Resolution 48, approved by the House January 26, 2005.
\2\ John Conyers, Jr. elected to the Committee as ranking minority 
Member pursuant to House Resolution 33, approved by the House January 
6, 2005.
Democratic Members elected to the Committee pursuant to House 
Resolution 49, approved by the House January 26, 2005.
\3\ Debbie Wasserman Schultz elected to the Committee pursuant to House 
Resolution 307, approved June 8, 2005.
    Tabulation of Activity on Legislation Held at the Full Committee

Legislation held at the full Committee...........................    87
Legislation failed to be ordered reported to the House...........     4
Legislation reported favorably to the House......................    36
Legislation reported adversely to the House......................     5
Legislation discharged from the Committee........................     7
Legislation pending in the House.................................    16
Legislation failed passage by the House..........................     4
Legislation passed by the House..................................    58
Legislation pending in the Senate................................    24
Legislation enacted into public law as part of another measure...     1
Legislation enacted into public law..............................    19
House concurrent resolutions approved............................     3
House resolutions approved.......................................     8
Legislation on which hearings were held..........................     0
Days of legislative hearings.....................................     0
Days of oversight hearings.......................................    11

                       Full Committee Activities

    During the 109th Congress the full Committee on the 
Judiciary Committee maintained its original jurisdiction with 
respect to a number of legislative and oversight matters. This 
included exclusive jurisdiction over antitrust and liability 
issues, including medical malpractice and product liability, 
legal reform generally, and such other matters as determined by 
the Chairman.

                         Legislative Activities


                               ANTITRUST

    The Committee on the Judiciary has jurisdiction over all 
laws relating to unlawful restraints of commerce and trade. 
United States antitrust laws are tailored to ensure the 
competitive functioning of the marketplace--i.e. competition in 
the marketplace and not the protection of any individual 
competitor. There are two principal antitrust laws in the 
United States--the Sherman Act and the Clayton Act. Both are 
enforceable by the Antitrust Division of the Department of 
Justice (DOJ), the Federal Trade Commission (FTC), and private 
persons. Other federal agencies have authority to examine 
competitive aspects of market transactions within their 
jurisdiction. During the 109th Congress, the full Judiciary 
Committee retained original jurisdiction over antitrust 
legislative and oversight matters.

H.R. 5417, the Internet Freedom and Nondiscrimination Act of 2006

    Summary.--H.R. 5417, the ``Internet Freedom and 
Nondiscrimination Act of 2006,'' preserves an antitrust remedy 
for anticompetitive and discriminatory practices by broadband 
service providers. As reported by the Committee on Energy and 
Commerce, H.R. 5252, the ``COPE'' Act, vests ``exclusive'' 
authority in the Federal Communications Commission to 
adjudicate complaints alleging violations of network neutrality 
principles. This exclusive grant may be interpreted to displace 
the application of the antitrust laws to remedy anticompetitive 
and discriminatory misconduct by broadband network providers.
    H.R. 5417 reasserts an antitrust remedy for anticompetitive 
conduct in which the broadband network provider: (1) fails to 
provide network services on reasonable and nondiscriminatory 
terms; (2) refuses to interconnect with the facilities of other 
network providers on a reasonable and nondiscriminatory basis; 
(3) blocks, impairs or discriminates against a user's ability 
to receive or offer lawful content; (4) prohibits a user from 
attaching a device to the network that does not damage or 
degrade the network; or (5) fails to disclose to users, in 
plain terms, the conditions of the broadband service. The 
legislation expressly permits a broadband network provider to 
take steps to manage the functioning and security of its 
network, to give priority to emergency communications, and to 
take steps to prevent violations of Federal and State law, or 
to comply with a court order. This legislation is not intended 
to diminish the ability of a broadband network provider to take 
any otherwise lawful actions to protect copyrighted works 
against infringement or to limit infringement on the provider's 
broadband network. In addition, the legislation does not 
represent a ``regulatory'' imposition on broadband network 
providers. Rather, the legislation reaffirms an antitrust 
remedy for anticompetitive conduct by broadband network 
providers in order to ensure that the dominant market power of 
broadband network providers is not employed in a manner that 
assaults the pro-competitive, nondiscriminatory architecture 
that has been a defining feature of the Internet's success.
    Legislative History.--H.R. 5417 was introduced by Chairman 
Sensenbrenner on May 18, 2006, and referred exclusively to the 
House Judiciary Committee. On May 25, 2006, the Full Committee 
marked up H.R. 5417. The bill was ordered reported, as amended, 
by the Yeas and Nays: 20-13 (H. Rept. 109-541). The substance 
of H.R. 5417 was offered as an amendment to H.R. 5252, the 
``COPE'' Act, during its consideration by the Committee on 
Rules, but was not made in order.

H.R. 5830, the Wright Amendment Reform Act

    Summary.--H.R. 5830 implements a compromise agreement 
reached by: the City of Dallas, Texas; the City of Fort Worth, 
Texas; American Airlines; Southwest Airlines; and Dallas-Fort 
Worth International Airport (DFW) on July 11, 2006, regarding 
air service at Dallas Love Field. The Judiciary Committee 
sought and received a sequential referral of the legislation 
pursuant to its rule XI(1)(1)(16) jurisdiction over the 
``protection of trade and commerce against unlawful restraints 
and monopolies.''
    As introduced, section 5 of the legislation provides that 
the agreement shall be deemed to comply in all respects with 
the parties obligations under title 49 United States Code, and 
any competition laws.'' While not explicitly defined in the 
legislation, ``competition laws'' encompass those related to 
the protections of trade against unlawful restraints, price 
discrimination, price fixing, abuse of market for 
anticompetitive purposes, and monopolies. Principle competition 
laws in the United States include the Sherman Act of 1890, 
Clayton Act of 1914, and Federal Trade Commission Act. 
Competition-related aspects of the agreement to which section 
5(a) of this legislation pertains are presently being litigated 
in Federal district court.\2\ As introduced, section 6 of the 
legislation provides the Department of Transportation exclusive 
authority to review actions taken to implement the agreement 
``with respect to any Federal competition laws . . . that may 
otherwise apply.'' This provision would have stripped authority 
from Federal antitrust enforcement agencies (Department of 
Justice and Federal Trade Commission) to review competitive 
aspects of the agreement.
---------------------------------------------------------------------------
    \2\ See Love Terminal Partnership, L.P. and Virginia Aerospace v. 
City of Dallas, et. al, Federal District Court for the Northern 
District of Texas (306-CV1279-D).
---------------------------------------------------------------------------
    To ensure that this agreement is not exempt from antitrust 
scrutiny, the Committee adopted by voice vote an amendment 
offered by Chairman Sensenbrenner (with the support of Ranking 
Member Conyers) to strike the antitrust exemption contained in 
section 5. The amendment also strikes language in section 6 of 
the underlying bill providing the Department of Transportation 
exclusive authority to review or enforce competition-related 
aspects of the agreement. Finally, the amendment adopted by the 
Committee contained a clear savings clause to preserve an 
antitrust remedy for competitive violations stemming from the 
July 11, 2006 agreement and the implementation of this 
legislation. It is the view of the Committee that competitive 
aspects of the July 11, 2006 agreement must be assessed in 
accordance with Federal antitrust law and established antitrust 
principles, and that any perceived or actual conflict between 
the July 11, 2006 and the antitrust laws must be resolved in 
favor of the antitrust laws.
    Legislative History.--H.R. 5830 was introduced by 
Representative Don Young (R-AK) on July 18, 2006. On July 26, 
2006, the legislation was sequentially referred to the House 
Judiciary Committee. The Committee met on September 13, 2006 to 
mark up the bill. An antitrust amendment offered by Chairman 
Sensenbrenner and Ranking Member Conyers was adopted by voice 
vote. The bill was reported favorably, as amended (H. Rept. 
109-600). No further action was taken on H.R. 5830, however 
it's companion bill, S. 3661, became public law on October 13, 
2006 (Pub. L. No. 109-352).

OVERSIGHT HEARINGS BY THE COMMITTEE ON JUDICIARY TASK FORCE ON TELECOM 
                             AND ANTITRUST

Network Neutrality: Competition, Innovation, and Nondiscriminatory 
        Access (Serial No. 109-109)

    Over the last decade, the Internet has revolutionized the 
manner in which Americans access and transmit a broad range of 
information and consume goods. The advent of high speed 
(broadband) Internet access has dramatically enhanced the 
ability of Americans to access this medium. Many credit the 
rapid rise of the Internet to the open architecture that 
defines it. There is broad recognition that investment in a 
diverse, faster, and more sophisticated Internet will further 
expand the ways in which American live, work, and play.\3\
---------------------------------------------------------------------------
    \3\ Remarks of Michael K. Powell, Chairman, Federal Communications 
Commission, at the Silicon Flatirons Symposium on ``The Digital 
Broadband Migration: Toward a Regulatory Regime for the Internet Age,'' 
University of Colorado School of Law, February 8, 2004.
---------------------------------------------------------------------------
    The Committee on the Judiciary and the antitrust laws have 
played a critical role in fostering competition in the 
telecommunications industry. Recent actions taken by the FCC 
and Supreme Court, coupled with increased consolidation of 
network providers, have heightened the risk of anticompetitive 
behavior in the telecom marketplace. Firms that control 
networks that provide access to the Internet may exercise 
market power to discriminate against rival services or 
competing technologies, or limit the ability of consumers to 
access online information or services in a neutral manner. 
Abuse of this market power may undermine the open architecture 
that has been a key feature of the Internet's success and 
utility. The basis of the hearing was to examine the concept of 
``net neutrality'' and assess whether concerns about 
discriminatory access to the Internet are substantive or merely 
speculative. The hearing also examined whether providers of 
Internet service engage in discriminatory conduct and what 
incentives exist for a provider to utilize power in such a 
manner. Finally, the hearing examined the state of competition 
in the broadband marketplace, its effect on net neutrality, the 
impact of recent regulatory decisions upon broadband Internet 
providers, the sufficiency of existing regulatory authority to 
protect network neutrality, and proposals to strengthen legal 
safeguards to deter competitive misconduct. Moreover, the 
hearing helped establish the legislative record demonstrating 
the need for H.R. 5417.
    The following witnesses appeared and submitted a written 
statement for the record: Mr. Paul Misener, Vice President of 
Global Public Policy, Amazon.com; Mr. Earl W. Comstock, 
President and CEO, COMPTEL; Mr. Walter B. McCormick, President 
and CEO, United States Telecom Association; and Mr. Timothy Wu, 
Professor of Law, Columbia Law School.

           ANTITRUST OVERSIGHT HEARINGS BY THE FULL COMMITTEE

Industry Competition and Consolidation: The Telecom Marketplace Nine 
        Years After the Telecom Act (Serial No. 109-26)

    Since 1957, the Committee on the Judiciary has played a 
central role in promoting competition in the telecom industry. 
The Judiciary Committee's involvement in promoting competition 
in the telecommunications marketplace dates back nearly a half 
century when the Committee held oversight hearings to examine 
the monopoly power that AT&T wielded because of its control of 
the local exchange and the Department of Justice's efforts to 
limit that power through antitrust enforcement.\4\
---------------------------------------------------------------------------
    \4\ See The Consent Decree Program of the Department of Justice; 
Hearings Before the Subcommittee on antitrust of the House Committee on 
the Judiciary, 85th Cong. (1957 and 1958); Report of the antitrust 
Subcommittee on the Consent Decree Program of the Department of 
Justice, 86th Cong. (1959).
---------------------------------------------------------------------------
    Section 1 of the Sherman Act of 1890 prohibits ``every 
contract, combination . . . or conspiracy, in restraint of 
trade or commerce among the several States.'' \5\ Section 2 of 
the Sherman Act provides that it is a violation of the 
antitrust laws to ``monopolize, or attempt to monopolize, or 
combine or conspire with any other person or persons, to 
monopolize any part of the trade or commerce among the several 
States, or with foreign nations.'' \6\ The principled 
application of the antitrust laws has served as the primary 
catalyst for the structural changes that have produced 
competitive gains and expanded consumer choice in the 
telecommunications field. The legal basis for the elimination 
of Ma Bell's national telephone monopoly was predicated in the 
antitrust laws. While the former AT&T had operated in a highly-
intensive Federal and State regulatory regime for decades, the 
government relied on the antitrust laws to provide the robust 
pro-competitive remedy that regulation could not and does not 
alone provide. Specifically, the Justice Department 
successfully alleged that AT&T unfairly limited competition 
through exclusionary conduct in violation of the Sherman Act. 
This anticompetitive conduct was manifested by ``manipulation 
of the terms and conditions under which competitors are 
permitted to interconnect with AT&T's existing services and 
facilities, including those of the local exchange operators.'' 
\7\ The Department also successfully alleged that AT&T 
``imposed a number of cumbersome and unnecessary technical and 
operational practices on its competitors which increased their 
costs and lowered the quality of their service, in marked 
contrast to the efficient interconnection arrangements made 
available to AT&T's own . . . connections.'' \8\ In the early 
1990s, the Committee conducted several legislative and 
oversight hearings concerning the market dominance exercised by 
the remnants of the former AT&T monopoly, and in 1995, the 
Committee conducted hearings to examine the Justice 
Department's responsibility to aggressively monitor competition 
in this field.
---------------------------------------------------------------------------
    \5\ 15 U.S.C. Sec. 1.
    \6\ 15 U.S.C. Sec. 2.
    \7\ See Plaintiff's Memorandum in Opposition to Defendant's Motion 
for Involuntary Dismissal Under Rule 41(b), United States v. AT&T Co., 
No. 74-1698 (D.D.C., filed Aug. 16, 1981).
    \8\ Id. at 79.
---------------------------------------------------------------------------
    The failure of the 1982 consent decree to produce robust 
competition lent impetus to congressional passage of 
legislation that was comprehensive and deregulatory in scope. 
The findings section of the 1996 Act states that its purpose is 
``to promote competition and reduce regulation in order to 
secure lower prices and higher quality services for American 
telecommunications consumers and encourage the rapid growth of 
telecommunications technologies.'' The 1996 Act further states 
that Congress intended ``to provide for a pro-competitive . . . 
national policy framework designed to accelerate rapidly 
private sector deployment of advanced telecommunications and 
information technologies and services to all Americans by 
opening all telecommunications markets to competition.'' \9\
---------------------------------------------------------------------------
    \9\ Id.
---------------------------------------------------------------------------
    In order to reaffirm the centrality of the antitrust laws 
in the liberalized regulatory regime established by the 1996 
Act, the Judiciary Committee and Congress preserved an explicit 
antitrust savings clause in the legislation. Specifically, the 
antitrust savings clause contained in Sec. 601(c)(1) of the 
1996 Act provided that: `` . . . Nothing in this Act or the 
amendments made by this Act shall be construed to modify, 
impair, or supersede the applicability of any of the antitrust 
laws. . . . This Act and the amendment made by this Act shall 
not be construed to modify, impair, or supersede Federal, 
State, or local law unless expressly so provided in such act or 
amendments.'' \10\
---------------------------------------------------------------------------
    \10\ Id.
---------------------------------------------------------------------------
    The legislative record surrounding consideration of the 
1996 Act emphasizes the crucial role of the antitrust laws in 
promoting competition and enhancing consumer welfare in the 
marketplace. The Joint Explanatory Statement of the Conference 
Committee stated that the antitrust savings clause: ``prevents 
affected parties from asserting that the bill impliedly 
preempts other laws.'' \11\ Members of both bodies affirmed 
this principle. Senator Thurmond stated: ``[The 1996 Act 
contains an] unequivocal antitrust savings clause that 
explicitly maintains the full force of the antitrust laws in 
this vital industry. Application of the antitrust laws is the 
most reliable, time-tested means of ensuring that competition, 
and the innovation that it fosters, can flourish to benefit 
consumers and the economy.'' \12\ Ranking Member Conyers 
observed: ``[t]he bill contains an all-important antitrust 
savings clause which ensures that any and all 
telecommunications mergers and anti-competitive activities . . 
. [b]y maintaining the role of the antitrust laws, the bill 
helps to ensure that the Bells cannot use their market power to 
impede competition and harm consumers.'' \13\ Senator Leahy 
stated: ``[r]elying on antitrust principles is vital to ensure 
that the free market will work to spur competition and reduce 
government involvement in the industry.'' \14\ In addition, the 
FCC formally acknowledged that its regulations did not provide 
the ``exclusive remedy'' for anti-competitive conduct.\15\ The 
FCC expressly concluded that: ``parties have several options 
for seeking relief if they believe that a carrier has violated 
the standards under section 251 or 252 . . . . [W]e clarify . . 
. that nothing in sections 251 and 252 or our implementing 
regulations is intended to limit the ability of persons to seek 
relief under the antitrust laws.'' \16\ Finally, former FCC 
Chairman Powell concluded that ``[g]iven the vast resources of 
many of the nation's ILECs,'' the FCC's current fining 
authority of $1.2 million per offense ``is insufficient to 
punish and deter violations in many instances.'' \17\
---------------------------------------------------------------------------
    \11\ Joint Explanatory Statement of the Committee of Conference, S. 
652, H.R. Rep. No. 104-458, S. Rep. No. 104-230, at 201 (1996) 
(``Conference Report'').
    \12\ 142 Cong. Rec. S687-01 (daily ed. February 1, 1996) (statement 
of Sen. Thurmond).
    \13\ 142 Cong. Rec. H1145-06 (daily ed. February 1, 1996) 
(statement of Rep. Conyers).
    \14\ 141 Cong. Rec. S18586-01 (daily ed. December 14, 1995) 
(statement of Sen. Leahy).
    \15\ First Report and Order, In re: Implementation of the Local 
Competition Provisions in the Telecommunications Act of 1996, 11 
F.C.C.R. 15499, para. 124 (Aug. 8, 1996) (R2-7-A174).
    \16\ Id. at para. 129 (R2-7-A175).
    \17\ Letter from Chairman Powell to House and Senate Appropriations 
Committees, May 4, 2001, available at: http://www.fcc.gov/Bureaus/
Common_Carrier/News_Releases/2001/nrcc0116.html.
---------------------------------------------------------------------------
    In recent years, the Committee has conducted a number of 
hearings and considered legislation relating to 
telecommunications competition. On May 22, 2001, the Committee 
conducted a legislative hearing examining H.R. 1698, the 
``American Broadband Competition Act of 2001,'' and H.R. 1697, 
the ``Broadband Competition and Incentives Act of 2001.'' On 
June 5, 2001, the Committee conducted a legislative hearing on 
H.R. 1542, the ``Internet Freedom and Broadband Deployment Act 
of 2001.'' Because the legislation did not contain the 
safeguards necessary to preserve competition in the broadband 
industry, the Committee adversely reported it.\18\
---------------------------------------------------------------------------
    \18\ H.R. Rep. No. 107-83, Part 2.
---------------------------------------------------------------------------
    On July 24, 2003, the Task Force on Antitrust conducted an 
oversight hearing entitled ``Antitrust Enforcement Agencies: 
The Antitrust Division of the Department of Justice and Bureau 
of Competition.'' On November 19, 2003, the Committee conducted 
an oversight hearing entitled ``Saving the Savings Clause: 
Congressional Intent, the Trinko Case and the Role of the 
Antitrust Law in Promoting Competition in the Telecom Sector.'' 
On July 23, 2004, the Committee conducted an oversight hearing 
on ``Regulatory Aspects of Voice Over the Internet Protocol 
(VoIP).''
    On April 20, 2005, the Committee conducted an oversight 
hearing examining ``Industry Competition and Consolidation: The 
Telecom Marketplace Nine Years After the Telecom Act.'' This 
hearing analyzed the current competitive landscape in the 
telecom industry. Some believe the recent wave of 
consolidations has created a telecom oligopoly, comprised of a 
diminishing number of Baby Bells that increasingly resemble the 
Ma Bell monopoly from which they were created. The Committee 
was interested in what steps it could take to ensure the 
vitality of competition in the telecom industry.
    The following witnesses appeared and submitted a written 
statement for the record: Mr. Carl J. Grivner, CEO, XO 
Communications; Mr. Brian R. Moir, on behalf of eTug; Mr. 
Michael Kellogg, on behalf of the U.S. Telecom Association; and 
Mr. Philip Verveer, Former lead Justice Department Antitrust 
Counsel in original antitrust filing against former AT&T.

                               Liability


                               BANKRUPTCY

S. 256, the Bankruptcy Abuse Prevention and Consumer Protection Act of 
        2005

    Summary.--S. 256 consisted of a comprehensive package of 
reform measures pertaining to both consumer and business 
bankruptcy cases. The consumer bankruptcy reforms address the 
needs of creditors as well as debtors. With respect to the 
interests of creditors, the reforms responded to many of the 
factors contributing to the increase in consumer bankruptcy 
filings, such as lack of personal financial accountability,\19\ 
the proliferation of serial filings, and the absence of 
effective oversight to eliminate abuse in the system. The heart 
of the bill's consumer bankruptcy reforms consisted of the 
implementation of an income/expense screening mechanism 
(``needs-based bankruptcy relief'' or ``means testing''), which 
was intended to ensure that debtors repay creditors the maximum 
they can afford. S. 256 also established new eligibility 
standards for consumer bankruptcy relief and included 
provisions intended to crackdown on serial and abusive 
bankruptcy filings. It substantially augmented the 
responsibilities of those charged with administering consumer 
bankruptcy cases as well as those who counsel debtors with 
respect to obtaining such relief. In addition, the bill limited 
the amount of homestead equity a debtor may shield from 
creditors, under certain circumstances.
---------------------------------------------------------------------------
    \19\ As one academic explained:
    [S]hoplifting is wrong; bankruptcy is also a moral act. Bankruptcy 
is a moral as well as an economic act. There is a conscious decision 
not to keep one's promises. It is a decision not to reciprocate a 
benefit received, a good deed done on the promise that you will 
reciprocate. Promise-keeping and reciprocity are the foundation of an 
economy and healthy civil society.
    Bankruptcy Reform: Joint Hearing Before the Subcomm. on Commercial 
and Administrative Law of the House Comm. on the Judiciary and the 
Subcomm. on Administrative Oversight and the Courts of the Senate Comm. 
on the Judiciary, 106th Cong. 98 (1999) (statement of Prof. Todd 
Zywicki).
---------------------------------------------------------------------------
    S. 256 also included various consumer protection reforms. 
The bill penalized a creditor who unreasonably refuses to 
negotiate a pre-bankruptcy debt repayment plan with a debtor. 
It strengthened the disclosure requirements for reaffirmation 
agreements (agreements by which debtors obligate themselves to 
repay otherwise dischargeable debts) so that debtors would be 
better informed about their rights and responsibilities. The 
legislation required certain monthly credit card billing 
statements to include specified explanatory statements 
regarding the increased amount of interest and repayment time 
associated with making minimum payments. The bill mandated 
certain home equity loan and credit card solicitations to 
include enhanced consumer disclosures. It also prohibited a 
creditor from terminating an open end consumer credit plan 
simply because the consumer has not incurred finance charges on 
the account. S. 256 allowed debtors to shelter from the claims 
of creditors certain education IRA plans and retirement pension 
funds. It required debtors to receive credit counseling before 
they can be eligible for bankruptcy relief so that they can 
make an informed choice about bankruptcy, its alternatives, and 
consequences. The bill also required debtors, after they have 
filed for bankruptcy, to participate in financial management 
instructional courses so they can hopefully avoid future 
financial distress.
    With respect to business bankruptcy, S. 256 included 
several significant provisions intended to heighten 
administrative scrutiny and judicial oversight of small 
business bankruptcy cases, which often are the least likely to 
reorganize successfully. In addition, it contained provisions 
designed to reduce systemic risk in the financial marketplace, 
the enactment of which Federal Reserve Board Chairman Alan 
Greenspan described as being ``extremely important.'' \20\ The 
bill included heightened protections for family farmers facing 
financial distress and allowed family fishermen to qualify for 
a specialized form of bankruptcy relief currently available 
only to family farmers. The bill also included provisions 
concerning transnational insolvencies, bankrupt health care 
providers, the treatment of tax claims, and data collection. In 
response to the exponential increase in bankruptcy filings, the 
bill authorized the creation of 28 additional bankruptcy 
judgeships.
---------------------------------------------------------------------------
    \20\ Letter from Alan Greenspan, Chairman, Federal Reserve Board, 
to F. James Sensenbrenner, Jr., Chairman, Committee on the Judiciary 
(Sept. 3, 2002) (on file with the Subcommittee on Commercial and 
Administrative Law of the House Committee on the Judiciary).
---------------------------------------------------------------------------
    Legislative History.--On February 1, 2005, Senator Charles 
E. Grassley (R-IA) (for himself and seven original cosponsors) 
introduced S. 256, the ``Bankruptcy Abuse Prevention and 
Consumer Protection Act of 2005.'' Thereafter, Chairman 
Sensenbrenner (for himself and 60 original cosponsors) 
introduced legislation (H.R. 685) identical to S. 256 on 
February 9, 2005. S. 256, as introduced, was substantively 
identical to legislation that the House passed in the prior 
Congress on two separate occasions with overwhelming bipartisan 
support.\21\ It was also substantively similar to a modified 
version of a bankruptcy reform conference report that the House 
passed in the 107th Congress by a vote of 244 to 116.\22\
---------------------------------------------------------------------------
    \21\ On March 19, 2003, the House passed H.R. 975, the ``Bankruptcy 
Abuse Prevention and Consumer Prevention Act of 2003,'' by a vote of 
315 to 113. 149 Cong. Rec. H2099-00 (daily ed. Mar. 19, 2003). 
Thereafter, the House, on January 28, 2004, passed S. 1920, as amended, 
the text of which was substituted with the text of H.R. 975, as passed 
by the House, by a vote of 265 to 99. 150 Cong. Rec. H218-19 (daily ed. 
Jan. 28, 2004).
     \22\ H. Rep. No. 107-617 (2002). The modifications consisted of 
the deletion of two provisions, one dealing with unlawful protest 
activities and the other authorizing additional bankruptcy judgeships. 
The text of the conference report, as amended, was introduced as H.R. 
5545, the ``Bankruptcy Abuse Prevention and Consumer Protection Act of 
2003.'' H.R. 5545, 107th Cong. (2002). In turn, the text of H.R. 5545 
was substituted as an amendment to H.R. 333. The House, thereafter, 
passed H.R. 333, as amended. 148 Cong. Rec. H8876-77 (daily ed. Nov. 
14, 2002).
---------------------------------------------------------------------------
    Since the 105th Congress, the House had passed bankruptcy 
reform legislation on eight separate occasions. In the 105th 
Congress, for example, the House passed both H.R. 3150, the 
``Bankruptcy Reform Act of 1998,'' and the conference report on 
that bill by veto-proof margins.\23\ In the 106th Congress, the 
House passed H.R. 833, the successor to H.R. 3150, by a veto-
proof margin of 313 to 108 \24\ and agreed to the conference 
report \25\ by voice vote.\26\ Although the Senate subsequently 
passed this legislation by a vote of 70 to 28,\27\ President 
Clinton pocket-vetoed it. In the 107th Congress, the House 
again registered its overwhelming support for bankruptcy reform 
on two more occasions. On March 1, 2001, the House passed H.R. 
333, the ``Bankruptcy Abuse Prevention and Consumer Protection 
Act,'' by a vote of 306 to 108.\28\ The House thereafter passed 
a modified version of the conference report on H.R. 333, as 
previously noted.\29\ In the last Congress, the House passed 
H.R. 975, the Bankruptcy Abuse Prevention and Consumer 
Protection Act of 2003,'' by a vote of 315 to 113 and S. 1920, 
which consisted of the text of H.R. 975, as passed by the 
House, by a vote of 265 to 99.\30\
---------------------------------------------------------------------------
    \23\ 144 Cong. Rec. H4442 (daily ed. June 10, 1998) (vote on final 
passage of H.R. 3150 was 306 to 118); 144 Cong. Rec. H10239-40 (daily 
ed. Oct. 9, 1998) (vote on final passage of the conference report on 
H.R. 3150 was 300 to 125).
    \24\ 145 Cong. Rec. H2771 (daily ed. May 5, 1999).
    \25\ H. Rep. No. 106-970 (2000).
    \26\ 146 Cong. Rec. H9840 (daily ed. Oct. 12, 2000).
    \27\ 146 Cong. Rec. S11730 (daily ed. Dec. 7, 2000).
    \28\ 147 Cong. Rec. H600-01 (daily ed. Mar. 1, 2001).
    \29\ See supra note 2.
    \30\ 149 Cong. Rec. H2099-00 (daily ed. Mar. 19, 2003); 150 Cong. 
Rec. H218-19 (daily ed. Jan. 28, 2004).
---------------------------------------------------------------------------
    The Committee and the Subcommittee, beginning in the 105th 
Congress, have held a total of 18 hearings on operation of the 
bankruptcy system and the need for reform.\31\ Eleven of these 
hearings were devoted solely to consideration of S. 256's 
predecessors, H.R. 3150 (105th Congress), H.R. 833 (106th 
Congress), H.R. 333 (107th Congress), and H.R. 975 (108th 
Congress). Over the course of these hearings, nearly 130 
witnesses, representing nearly every major constituency in the 
bankruptcy community, testified. With regard to H.R. 833 alone, 
testimony was received from 69 witnesses, representing 23 
organizations, with additional material submitted by other 
groups.
---------------------------------------------------------------------------
    \31\ The dates and subject matters of these hearings are as 
follows:
    April 16, 1997: Hearing on the operation of the bankruptcy system 
and status report from the National Bankruptcy Review Commission.
    April 30, 1997: Hearing on H.R. 764, the ``Bankruptcy Amendments of 
1977,'' and H.R. 120, the ``Bankruptcy Law Technical Corrections Act of 
1997.''
    October 9, 1997: Hearing on H.R. 2592, the ``Private Trustee Reform 
Act of 1997'' and review of post-confirmation fees in chapter 11 cases.
    November 13, 1997: Hearing on the Report of the National Bankruptcy 
Review Commission.
    February 12, 1998: Hearing on H.R. 2604, the ``Religious Liberty 
and Charitable Donation Protection Act of 1997.''
    March 10-11, 18-19, 1998: Hearings on H.R. 3150, the ``Bankruptcy 
Reform Act of 1998.'' H.R. 3146, the ``Consumer Leanders and Borrowers 
Bankruptcy Accountability Act of 1998,'' and H.R. 2500, the 
``Responsible Borrower Protection Bankruptcy Act.''
    March 11-12, 18-19, 1999: Hearings on H.R. 833, the ``Bankruptcy 
Reform Act of 1999.''
    November 2, 1999: Joint oversight hearing on additional bankruptcy 
judgeship needs.
    April 11, 2000: Oversight hearing on the limits on regulatory 
powers under the Bankruptcy Code.
    February 7-8, 2001: Hearings on H.R. 333, the ``Bankruptcy Abuse 
Prevention and Consumer Protection Act of 2001.''
    March 4, 2003: Hearing on H.R. 975, the ``Bankruptcy Abuse 
Prevention and Consumer Protection Act of 2003'' and the need for 
bankruptcy reform.
---------------------------------------------------------------------------
    On February 10, 2005, the Senate Committee on the Judiciary 
held a hearing on S. 256, which reviewed the reasons why the 
current bankruptcy system needed reform and how this 
legislation would implement those reforms.\32\ Testimony was 
received from eight witnesses, including: Kenneth Beine on 
behalf of the Credit Union National Association; Maria Vullo, a 
partner with the New York law firm of Paul, Weiss, Rifkind, 
Wharton & Garrison LLP; Malcom Bennett on behalf of the 
National Multi Housing Council/National Apartment Association; 
Philip Strauss on behalf of the National Child Support 
Enforcement Association; Dave McCall on behalf of the United 
Steel Workers of America, AFL-CIO; R. Michael Stewart Menzies, 
Sr. on behalf of the Independent Community Bankers of America; 
Professor Elizabeth Warren, Leo Gottlieb Professor of Law at 
Harvard Law School; and Professor Todd J. Zywicki, Visiting 
Professor of Law at Georgetown University Law Center. Among the 
matters considered at the hearing were: (1) the adequacy of the 
current bankruptcy system with respect to the detection of 
fraud and abuse; (2) how abuse and fraud in the current 
bankruptcy system impacted on American businesses and our 
nation's citizens generally; (3) whether the legislation 
adversely impacted individuals deserving of bankruptcy relief; 
(4) whether the proposed reforms would assist those charged 
with administrative oversight of bankruptcy cases and law 
enforcement matters; and (5) whether, given current economic 
circumstances, the need for comprehensive bankruptcy reform 
still existed.
---------------------------------------------------------------------------
    \32\ Bankruptcy Abuse Prevention and Consumer Protection Act of 
2005: Hearing on S. 256 Before the Subcomm. on Administrative Oversight 
and the Courts of the Senate Comm. on the Judiciary, 109th Cong. 
(2005).
---------------------------------------------------------------------------
    On February 17, 2005, the Senate Judiciary Committee marked 
up S. 256 and ordered the bill, as amended, to be favorably 
reported by a vote of 12 to 5. Over the course of the markup, 
five amendments were passed. On March 10, 2005, the Senate 
passed S. 256, as amended, by a vote of 74 to 25.\33\ Nearly 
130 amendments were filed. Of these, 24 failed, 24 were 
withdrawn, eight were passed either by vote or unanimous 
consent, and the remaining were not offered.
---------------------------------------------------------------------------
    \33\ 151 Cong. Rec. S2474 (daily ed. Mar. 10, 2005).
---------------------------------------------------------------------------
    On March 16, 2005, the House Judiciary Committee marked up 
S. 256 and ordered it favorably reported without amendment by a 
recorded vote of 22 to 13. Thereafter, the House, on April 14, 
2005, passed S. 256, without an amendment, by a vote of 302 to 
126. President George W. Bush signed the bill into law on April 
20, 2005 as Public Law 109-8.

H.R. 420--The Lawsuit Abuse Reduction Act

    Summary.--H.R. 420 would restore mandatory sanctions for 
filing frivolous lawsuits in violation of Rule 11 of the 
Federal Rules of Civil Procedure; restore the opportunity for 
monetary sanctions, including attorneys' fees and compensatory 
costs, against any party making a frivolous claim; abolish Rule 
11's current ``free pass'' provision (in Rule 11 since it was 
amended in 1993) which allows lawyers to avoid sanctions for 
making frivolous claims by simply withdrawing frivolous claims 
within 21 days after a motion for sanctions has been filed; 
allow Rule 11's provisions preventing frivolous lawsuits to 
apply to state cases in which a state judge finds the case 
substantially affects interstate commerce by threatening jobs 
and economic losses to other states; and prevent forum shopping 
(the notorious practice by which personal injury attorneys 
cherry-pick courts and bring lawsuits in jurisdictions that 
consistently hand down astronomical awards, even when the case 
has little or no connection to the state or locality) by 
requiring that personal injury cases be brought only where the 
plaintiff resides, where the plaintiff was allegedly injured, 
or where the defendant's principal place of business is 
located. H.R. 420 also requires that if an attorney violates 
Rule 11 three or more times in a Federal district court, the 
court shall suspend that attorney from the practice of law in 
that Federal district court for 1 year, or longer if the court 
considers it appropriate.
    Legislative History.--H.R. 420 was introduced by Rep. Lamar 
Smith on January 26, 2005. On May 25, 2005, it was reported out 
of the House Judiciary Committee (as amended) by a vote of 19 
to 11. On October 27, 2005, H.R. 420 passed the House by a vote 
of 228 to 184.

H.R. 554--The Personal Responsibility in Food Consumption Act

    Summary.--H.R. 554 would generally prohibit lawsuits 
against food manufacturers and sellers for obesity-related 
damages, with a few exceptions. Under such exceptions, lawsuits 
could still be brought against food manufacturers and sellers 
for breach of express contract or express warranty, and where a 
food manufacturer or seller violated a State or federal statute 
applicable to the marketing, advertisement, or labeling of a 
food and that violation caused someone harm. H.R. 554 also 
includes provisions that require that a case be halted while 
the court makes a decision regarding whether any of the 
exceptions in the bill have been met and the case can go 
forward, as long as halting the case does not result in 
unfairness. H.R. 554 also requires that the written complaint 
initiating any lawsuit that claims to meet the exceptions in 
the bill spell out with particularity the claims made, the 
State or federal statutes that are claimed to have been 
violated, and the facts regarding the claimed injury. H.R. 554 
also includes a statement making clear that the bill does not 
create any new causes of action, or any new remedies.
    Legislative History.--H.R. 554 was introduced by Rep. 
Keller on February 2, 2005, and referred to the Subcommittee on 
Commercial and Administrative Law. On May 25, 2005, it was 
ordered reported (as amended) by the Judiciary Committee by a 
vote of 16 to 8. On October 19, 2005, it passed the House by a 
vote of 306 to 120.

H.R. 1176, the Nonprofit Athletic Organization Protection Act

    Summary.--H.R. 1176, the ``Nonprofit Athletic Organization 
Protection Act of 2006'' is intended to stem the growing threat 
of lawsuits against organizations ranging from little leagues 
to high school sports rule-making bodies. The bill exempts 
nonprofit athletic organizations and their officers and 
employees acting in their official capacity from liability for 
harm caused by a negligent act or omission of such organization 
in the adoption of rules of play for sanctioned or approved 
athletic competitions or practices. The general protection 
preempts inconsistent State laws but makes exceptions for 
certain State laws requiring adherence to risk management and 
training procedures, State general respondeat superior laws, or 
State laws waiving liability limits in cases brought by any 
officer of the State or local government. The language mirrors 
provisions of the Volunteer Protection Act, 42 U.S.C. 
Sec. 14501.
    Legislative History.--Rep. Mark Souder introduced H.R. 1176 
on March 8, 2005, and the bill was referred to the Committee on 
the Judiciary. On March 2, 2006, the Committee on the Judiciary 
held a markup on the bill and reported it favorably without 
amendment by voice vote. The House of Representatives 
considered the bill, as amended, under suspension of the rules 
on December 5, 2006, and it failed by a recorded vote of 219 to 
187.

H.R. 1871, the Volunteer Pilot Organization Protection Act

    Summary.--H.R. 1871, the ``Volunteer Pilot Organization 
Protection Act of 2006,'' amends the Volunteer Protection Act 
to include volunteer pilots and volunteer pilot organizations 
within the scope of its protections. Under present law, 
nonprofit volunteer pilot organizations and their pilots that 
provide life-saving medical flights without compensation are 
vulnerable to costly and often frivolous litigation that 
undermines the ability of these organizations to provide 
critical volunteer flight services in a timely manner. In 
addition, institutions that refer patients to volunteer pilot 
organizations are presently subject to legal jeopardy. H.R. 
1871 protects and promotes the important work of volunteer 
pilot organizations by creating limited protection against 
liability to volunteer pilot organizations and pilots so that 
they are able to procure necessary insurance and continue their 
important operations.
    Legislative History.--Rep. Thelma Drake introduced H.R. 
1871 on April 27, 2005, and it was subsequently referred to the 
Committee on the Judiciary. On March 2, 2006, the Committee on 
the Judiciary held a markup on the bill and reported it 
favorably with an amendment by voice vote. The House of 
Representatives considered H.R. 1871 under suspension of the 
rules on July 17, 2006, and passed the bill by voice vote.

                        National Security Issues


H.R. 418, the REAL ID Act

            Summary of Provisions of the REAL ID Act within the 
                    Jurisdiction of the Judiciary Committee
    Section 101. Preventing Terrorists from Obtaining Relief 
from Removal. As the staff of the 9/11 Commission determined, 
terrorist aliens have exploited our asylum laws to enter and 
remain in the United States. Aliens who pose a danger to the 
national security of the United States have been barred from 
receiving asylum and withholding of removal by regulation since 
1990. In 1996, Congress amended the Immigration and Nationality 
Act (INA) to explicitly bar aliens who were inadmissible or 
deportable on terrorism grounds from receiving asylum and 
withholding. Despite these bars to dangerous aliens receiving 
asylum, however, the 9/11 Terrorist Travel monograph notes that 
``[a] number of terrorists [have] . . . abused the asylum 
system.''
    For example, Ramzi Yousef and Ahmad Ajaj, plotters of the 
first World Trade Center bombing, ``concocted bogus political 
asylum stories when they arrived'' to remain in the United 
States in 1992. Similarly, Sheikh Abdul Rahman ``avoided being 
removed from the United States by filing an application for 
asylum and withholding of deportation to Egypt in . . . 1992.''
    In addition to these aliens whose asylum abuse was 
specifically described in the Terrorist Travel Monograph, other 
alien terrorists have abused our generous asylum laws. In 
January 1993, 11 months after he applied for asylum, Mir Kansi 
killed two CIA employees in front of CIA headquarters in 
Langley, Virginia. Kansi had been a visa overstay for almost a 
year before filing that application. Hesham Hedayet killed two 
in a shooting spree at Los Angeles International Airport on 
July 4, 2002. He entered the United States in 1992, and 
extended his stay by filing an asylum application one month 
before his stay ended. His application was administratively 
denied, but he adjusted his status 17 months later after his 
wife won the visa lottery.
    Nor did the reforms in the mid-1990s end such abuse. In 
February 1997, for example, Gazi Ibrahim Abu Mezer was released 
after entering the United States illegally when he stated that 
he would be applying for asylum. On July 31, 1997, Mezer was 
arrested in a Brooklyn apartment for planning to bomb the New 
York City subway system.
    In January 1999, Somali Nuradin Abdi was granted asylum. 
According to federal prosecutors, Abdi used that status to 
apply for a travel document to go to Africa for terrorist 
training. After he returned to the United States, he was 
charged with conspiring to provide material support for al 
Qaeda, and the Justice Department claims ``that Abdi, along 
with admitted al Qaeda operative Iyman Ferris and other co-
conspirators, initiated a plot to blow up a Columbus [Ohio] 
area shopping mall.'' The government has also revoked his 
asylum because ``with the exception of some minor biographical 
data, every aspect of [Abdi's] asylum application . . . was 
false.''
    The REAL ID Act responded to terrorist abuse of our asylum 
laws. Specifically, section 101 amended section 208 INA to: (1) 
authorize the Secretary of Homeland Security, in addition to 
the Attorney General, to grant asylum; (2) require asylum 
applicants to prove that race, religion, nationality, 
membership in a particular social group, or political opinion 
was or will be (if removed) at least one central reason for 
their persecution; and (3) provide that an applicant's 
testimony may be sufficient to sustain this burden of proof 
only if the trier of fact determines that it is credible, 
persuasive, and fact-specific. It also requires the applicant 
to provide corroborating evidence where requested by the trier 
of fact unless the applicant does not have the evidence and 
cannot reasonably obtain it.
    Section 101 of the REAL ID also authorizes a trier of fact, 
considering the totality of the circumstances and all relevant 
factors, to base credibility determinations in asylum cases on 
the: (1) demeanor, candor, or responsiveness of the applicant 
or witness; (2) inherent plausibility of the applicant's or 
witness's account; (3) consistency between the applicant's or 
witness's written and oral statements; (4) internal consistency 
of each such statement; (5) consistency of such statements with 
other evidence of record (including the Department of State's 
reports on country conditions); and (6) any inaccuracies or 
falsehoods in such statements regardless of whether they go to 
the heart of the applicant's claim. This section also makes 
these provisions regarding proof requirements and credibility 
determinations in asylum proceedings applicable to other 
requests for relief from removal, and limits judicial review of 
determinations regarding the availability of corroborating 
evidence.
    In addition, section 101 removes the numerical limit on the 
number of aliens granted asylum who may become lawful permanent 
residents in any fiscal year (previously set at 10,000), and 
struck a provision in the INA setting refugee admission numbers 
for persons subject to persecution for their resistance to 
coercive population control methods.
    Section 102. Waiver of Legal Requirements Necessary for 
Improvement of Barriers at Borders; Federal Court Review. 
Section 102 of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 provided that the Attorney General 
should take such actions necessary to install additional 
physical barriers and roads in the vicinity of the U.S. border 
to deter illegal crossings, including the construction of 
multiple layers of fencing along the 14 miles of the southern 
land border inland from the Pacific Ocean. In response to a 
series of lawsuits that were inordinately delaying completion 
of the required fencing, section 102 of the REAL ID Act 
provides that notwithstanding any other provision of law, the 
Secretary of Homeland Security shall have the authority to 
waive all legal requirements the Secretary, in the Secretary's 
sole discretion, determines necessary to ensure expeditious 
construction of the barriers and roads under section 102 of the 
1996 law. In addition, the district courts of the United States 
shall have exclusive jurisdiction to hear all causes or claims 
arising from any action undertaken, or any such decision made, 
by the Secretary. A cause of action or claim may only be 
brought alleging a violation of the Constitution of the United 
States. An interlocutory or final judgment, decree, or order of 
the district court may be reviewed only upon petition for a 
writ of certiorari to the Supreme Court of the United States.
    Section 103. Inadmissibility Due to Terrorist and Terrorist 
Related Activities. Prior to enactment of the REAL ID Act, the 
Immigration and Nationality Act was based on a flawed 
understanding of how terrorist organizations operate. The INA 
read that if an alien provided funding or other material 
support to a terrorist organization that had not yet been 
designated by the Secretary of State as a terrorist 
organization, the alien was not inadmissible or deportable if 
the alien could show that he did not know that the funds or 
support would further the organization's terrorist activity, 
i.e., the alien's donation did not immediately go to buying 
explosives. This fundamentally misunderstood how terrorist 
organizations operate. Many terrorist organizations use front 
organizations (including charities and so-called 
``humanitarian'' groups) to support their terrorist activities 
and as cover for their terrorist activities. As President Bush 
has explained:

    [I]nternational terrorist networks make frequent use of charitable 
or humanitarian organizations to obtain clandestine financial and other 
support for their activities . . . [T]he provision of humanitarian 
materials [to these groups] could be used as a loophole through which 
support could be provided to individuals or groups involved with 
terrorism and whose activities endanger the safety of United States 
nationals, both here and abroad.

    Money given to terrorist organizations is fungible. In 
1996, Congress ``recognize[d] the fungibility of financial 
resources'' and found that ``[a]llowing an individual to supply 
funds . . . to a [terrorist] organization helps defray the cost 
to the terrorist organization of running the ostensibly 
legitimate activities. This in turn frees an equal sum that can 
then be spent on terrorist activities.'' Senator Dianne 
Feinstein has stated that:

    Some have raised the objection that certain groups, that may 
conduct terrorist operations, also run humanitarian or social service 
operations, like schools and clinics. But I simply do not accept that 
so-called humanitarian works by terrorist groups can be kept separate 
from their other operations. I think the money will ultimately go to 
bombs and bullets, rather than babies, or, because money is fungible, 
it will free up other funds to be used on terrorist activities.

    Based on this understanding of how terrorist organizations 
work, the REAL ID Act was written so that an alien who provides 
funds or other material support to any terrorist organization 
is deportable unless the alien did not know, and should not 
reasonably have known, that the organization was a terrorist 
organization. There is no reason that knowing donations to a 
terrorist organization should be excused merely because the 
terrorist group is new or transmogrified from an earlier group 
or because political considerations or bureaucratic delays at 
the State Department have prevented it from being designated.
    The specific changes to the INA made by section 103 are as 
follows:
          --Prior to the REAL ID Act, representatives of 
        foreign terrorist organizations as designated by the 
        Secretary of State under section 219 of the INA were 
        inadmissible, as were representatives of political, 
        social or other similar groups whose public endorsement 
        of acts of terrorist activity the Secretary of State 
        determined undermined U.S. efforts to reduce or 
        eliminate terrorist activity. Section 103 provides that 
        representatives of any terrorist organization are 
        inadmissible, as are representatives of any political, 
        social, or other group that endorses or espouses 
        terrorist activity.
          --Prior to the REAL ID Act, members of foreign 
        terrorist organizations as designated by the Secretary 
        of State under section 219 were inadmissible if the 
        members knew or should have known the organizations 
        were terrorist organizations. Section 103 provides that 
        all members of terrorist organizations as designated by 
        the Secretary of State under section 219 or as 
        otherwise designated by the Secretary of State in the 
        Federal Register are inadmissible. Also inadmissible 
        are all members of other terrorist organizations unless 
        the members can demonstrate by clear and convincing 
        evidence that they did not know, and should not 
        reasonably have known, that the organizations were 
        terrorist organizations.
          --Prior to the REAL ID Act, aliens were inadmissible 
        who had used their position of prominence within any 
        country to endorse or espouse terrorist activity, or to 
        persuade others to support terrorist activity or a 
        terrorist organization, in a way the Secretary of State 
        had determined undermined U.S. efforts to reduce or 
        eliminate terrorist activities. Section 103 provides 
        that any aliens are inadmissible who endorse or espouse 
        terrorist activity or persuade others to do so or to 
        support a terrorist organization.
          --Section 103 provides that any aliens who receive 
        military-type training from or on behalf of a terrorist 
        organization are inadmissible.
          --Prior to the REAL ID Act, aliens were inadmissible 
        who solicited funds or other things of value for a 
        terrorist organization not designated by the Secretary 
        of State, unless the solicitors could demonstrate that 
        they did not know, and should not reasonably have 
        known, that the solicitations would further the 
        organization's terrorist activity. Section 103 provides 
        that aliens are inadmissible who solicit for a non-
        designated terrorist organization unless the solicitors 
        can demonstrate by clear and convincing evidence that 
        they did not know, and should not reasonably have 
        known, that the organization was a terrorist 
        organization.
          --Prior to the REAL ID Act, aliens were inadmissible 
        who solicited any individual for membership in a 
        terrorist organization not designated by the Secretary 
        of State, unless the solicitors could demonstrate that 
        they did not know, and should not reasonably have 
        known, that the solicitations would further the 
        organization's terrorist activity. Section 103 provides 
        that aliens are inadmissible if they solicit any 
        individual for membership in a non-designated terrorist 
        organization unless the solicitors can demonstrate by 
        clear and convincing evidence that they did not know, 
        and should not reasonably have known, that the 
        organization was a terrorist organization.
          --Section 103 provides that aliens are inadmissible 
        who afford material support to any member of a 
        terrorist organization as designated by the Secretary 
        of State under section 219 or as otherwise designated 
        by the Secretary of State in the Federal Register.
          --Prior to the REAL ID Act, aliens were inadmissible 
        for affording material support to a terrorist 
        organization not designated by the Secretary of State, 
        unless the aliens could demonstrate that they did not 
        know, and should not reasonably have known, that the 
        acts would further the organization's terrorist 
        activity. Section 103 provides that aliens are 
        inadmissible for affording material support to a 
        terrorist organization not designated by the Secretary 
        of State, or to any member of such organization, unless 
        the aliens can demonstrate by clear and convincing 
        evidence that they did not know, and should not 
        reasonably have known, that the organization was a 
        terrorist organization.
          --Prior to the REAL ID Act, a terrorist organization 
        meant an organization (1) designated by the Secretary 
        of State under section 219 of the INA, (2) otherwise 
        designated, upon publication in the Federal Register, 
        by the Secretary of State in consultation with or upon 
        the request of the Attorney General, as a terrorist 
        organization, after finding that the organization 
        committed or incited to commit, under circumstances 
        indicating an intention to cause death or serious 
        bodily injury, a terrorist activity, prepared or 
        planned a terrorist activity, or gathered information 
        on potential targets for terrorist activity, or (3) was 
        a group of two or more individuals, whether organized 
        or not, which engaged in the activities described 
        above.
          --Section 103 makes two changes to this definition. 
        First, the culpable activities making an organization a 
        terrorist organization are expanded to include (1) 
        soliciting funds or other things of value for a 
        terrorist activity, a terrorist organization designated 
        by the Secretary of State under section 219 or 
        otherwise through the Federal Register, or to any other 
        terrorist organization unless the solicitor can 
        demonstrate by clear and convincing evidence that it 
        did not know, and should not reasonably have known, 
        that the organization was a terrorist organization, (2) 
        soliciting any individual to engage in terrorist 
        conduct, for membership in a terrorist organization 
        designated by the Secretary of State under section 219 
        or otherwise through the Federal Register, or for 
        membership in any other terrorist organization unless 
        the solicitor can demonstrate by clear and convincing 
        evidence that it did not know, and should not 
        reasonably have known, that the organization was a 
        terrorist organization, or (3) affording material 
        support for (a) the commission of a terrorist activity, 
        (b) to any individual the organization knows, or 
        reasonably should know, has committed or plans to 
        commit a terrorist activity, (c) to a terrorist 
        organization designated by the Secretary of State under 
        section 219 or otherwise through the Federal Register, 
        or (d) to any other terrorist organization unless the 
        organization can demonstrate by clear and convincing 
        evidence that it did not know, and reasonably should 
        not have known, that the terrorist organization was a 
        terrorist organization. Second, section 103 provides 
        that a non-designated terrorist organization is a group 
        of two or more individuals, whether organized or not, 
        which engages in, or has a subgroup which engages in, 
        the activities as added above in addition to the 
        activities described in prior law.
    Section 104. Waiver for Certain Grounds of Inadmissibility. 
Prior to the REAL ID Act, the bar to inadmissibility for 
affording material support could be waived in the sole 
unreviewable discretion of the Secretary of State, after 
consultation with the Attorney General, or the Attorney 
General, after consultation with the Secretary of State. In its 
place, section 103 provides that the Secretary of State, after 
consultation with the Attorney General and the Secretary of 
Homeland Security, or the Secretary of Homeland Security, after 
consultation with the Secretary of State and the Attorney 
General, may in their sole unreviewable discretion waive the 
ground of inadmissibility of (1) being a representative of a 
political, social, or other group that endorses or espouses 
terrorist activity, (2) endorsing or espousing terrorist 
activity or persuading others to do so or to support a 
terrorist organization, and (3) affording material support. 
They may also find in their sole unreviewable discretion that 
an organization is not a terrorist organization if it would be 
so categorized solely by virtue of having a subgroup that 
engaged in terrorist activities. Each fiscal year, the 
Secretaries of State and Homeland Security must provide to 
Congress a report on the aliens who have received waivers. They 
must also provide Congress with a report within one week of 
finding that an organization is not a terrorist organization 
pursuant to section 104.
    Section 105. Removal of Terrorists. Prior to enactment of 
the REAL ID Act, one of the most basic defects in the manner in 
which our immigration laws responded to the threat from alien 
terrorists was that not all terrorism-related grounds of 
inadmissibility were also grounds of deportability. 
Essentially, some terrorists and their supporters could be kept 
out of the United States, but as soon as they were admitted to 
the U.S. on tourist visas, they could not be deported for the 
very same offenses. This hindered our nation's ability to 
protect Americans from those alien terrorists who have 
infiltrated the United States. Examples of aliens who could be 
kept out of the U.S. but who could not be deported included 
aliens who were likely to engage in terrorism, aliens who were 
representatives of terrorist organizations, aliens who were 
members of terrorist organizations, aliens who used their 
position of prominence to endorse or espouse terrorism, and 
aliens who had been associated with a terrorist organization 
(and intended while in the U.S. to engage in activities that 
could endanger the welfare, safety, or security of the U.S.). 
Section 105 makes aliens deportable for these offenses to the 
same extent that they would be inadmissible to the United 
States. It provides that all aliens who are inadmissible for 
terrorist or terrorist-related activities are also deportable 
(should they have been admitted to the U.S.), as are aliens who 
are inadmissible for associating with a terrorist organization.
    Section 105 also deletes as duplicative the limited grounds 
of deportation for receiving military-type training from a 
terrorist organization that was contained in the Intelligence 
Reform and Terrorism Prevention Act of 2004.
    Section 106. Judicial Review of Orders of Removal. Section 
106 of Division B addresses a number of judicial review 
anomalies improperly favoring criminal aliens that were created 
by court decisions interpreting changes to the INA made in 
1996. Since 1961, Congress has consistently provided that only 
the courts of appeals may review removal orders. From 1961 
through 1996, the INA provided that review in the courts of 
appeals ``shall be the sole and exclusive procedure'' for 
judicial review of deportation orders. See INA subsection 
106(a) (1995). As the legislative history behind this provision 
reveals, Congress aimed to ``create a single, separate, 
statutory form of judicial review of administrative orders for 
the deportation and exclusion of aliens from the United 
States.'' \34\ Congress's ``fundamental purpose'' was ``to 
abbreviate the process of judicial review of deportation 
orders'' and to ``eliminat[e] the previous initial step in 
obtaining judicial review--a suit in a District Court.'' \35\ 
Thus, a final order of deportation could be challenged only in 
the appropriate court of appeals upon a timely filed petition 
for review.
---------------------------------------------------------------------------
    \34\ H. Rept. No. 1086, 87th Cong., 1st Sess., reprinted in 1961 
U.S.C.C.A.N. 2950, 2966 (1961).
    \35\ Foti v. INS, 375 U.S. 217, 224 (1963).
---------------------------------------------------------------------------
    Such order could not have been challenged in district court 
by way of habeas corpus. Although the INA contained another 
provision permitting habeas review, see INA Sec. 106(a)(10) 
(1995), several circuits interpreted that provision as not 
providing habeas review over deportation orders, but only 
review over collateral issues, such as whether the alien should 
be released from custody or granted a stay of deportation 
pending a petition for review.
    Moreover, to the extent that habeas review of deportation 
orders had been available before 1996, Congress attempted to 
eliminate it in enacting the Antiterrorism and Effective Death 
Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132. One of the 
statute's provisions, entitled ``Elimination of Custody Review 
by Habeas Corpus,'' expressly repealed the former habeas 
provision.\36\ This was part of Congress's broad efforts to 
streamline immigration proceedings. Indeed, to expedite 
removal, section 440(a) of AEDPA precluded all judicial review 
of deportation orders for certain classes of criminal aliens.
---------------------------------------------------------------------------
    \36\ See subsection 401(e), repealing INA paragraph 106(a)(10).
---------------------------------------------------------------------------
    Congress continued these streamlining reforms when it 
enacted the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208. In 
IIRIRA, Congress reestablished that only courts of appeals--and 
not district courts--could review a final removal order (or, to 
use the pre-1996 nomenclature, deportation order or exclusion 
order).\37\ In addition, Congress made clear that review of a 
final removal order was the only mechanism for reviewing any 
issue raised in a removal proceeding.\38\ Together, these 
provisions were intended to preclude all district court review 
of any issue raised in a removal proceeding. Finally, as it did 
in AEDPA, Congress confirmed that criminal aliens could not 
obtain any judicial review. IIRIRA expressly provided that, 
``[n]otwithstanding any other provision of law, no court shall 
have jurisdiction to review any final order of removal against 
an alien who is removable by reason of having committed'' one 
of various criminal offenses.\39\
---------------------------------------------------------------------------
    \37\ See section 242(a)(1) of the INA (incorporating the Hobbs Act, 
28 U.S.C. sec. 2347).
    \38\ Section 242(b)(9) of the INA (2000).
    \39\ See section 242(a)(2)(C) (2000) (emphasis added).
---------------------------------------------------------------------------
    Despite Congress's efforts to limit judicial review in 
1996, the Supreme Court expanded it just five years later. In 
INS v. St. Cyr, the Supreme Court held that criminal aliens are 
actually entitled to more review than they had before the 1996 
amendments, and more review than non-criminal aliens.\40\ 
Specifically, the Court held that criminal aliens could seek 
habeas review of their removal orders under 28 U.S.C. sec. 
2241. With habeas review, the criminal alien would get review 
in district court and, on appeal, in the court of appeals. The 
Court recognized that, as a result of its decision, criminal 
aliens would be able to seek review in district court and, on 
appeal, in the courts of appeals, whereas non-criminal aliens 
could obtain review only in the courts of appeals. It noted 
that Congress could fix this anomaly, however. As the Court 
stated, ``Congress could without raising any constitutional 
questions, provide an adequate substitute [to section 2241] 
through the courts of appeals.'' \41\
---------------------------------------------------------------------------
    \40\ INS v. St. Cyr, 533 U.S. 289 (2001).
    \41\ Id. at 314. n.38.
---------------------------------------------------------------------------
    Among the many problems caused by St. Cyr, the most 
significant is that this decision allows criminal aliens to 
delay their expulsion from the United States for years. 
Furthermore, because of St. Cyr, aliens who have committed 
serious crimes in the United States are generally able to 
obtain more judicial review than non-criminal aliens. As the 
dissent in St. Cyr pointed out, allowing criminal aliens to 
obtain habeas review of their immigration orders in the 
district court ``brings forth a version of the statute that 
affords criminal aliens more opportunities for delay-inducing 
judicial review than are afforded to non-criminal aliens, or 
even than were afforded to criminal aliens prior to the 
legislation concededly designed to expedite their 
removal.''\42\ Not only is this result unfair and illogical, 
but it also wastes scarce judicial and executive resources.
---------------------------------------------------------------------------
    \42\ 533 U.S. at 327 (Scalia, J. dissenting)
---------------------------------------------------------------------------
    Finally, the result in St. Cyr has created confusion in the 
federal courts as to what immigration issues can be reviewed, 
and which courts can review them. The decision in St. Cyr 
itself held that district courts, and not the courts of 
appeals, have habeas corpus review authority over statutory 
claims involving discretionary immigration relief. On the other 
hand, after St. Cyr, every circuit court has held that courts 
of appeals retain jurisdiction to review limited threshold 
``jurisdiction to determine jurisdiction'' questions raised by 
criminal aliens in petitions for review. Therefore, following 
St. Cyr, some issues are still reviewable in the circuit courts 
while others are reviewable only in the district courts, 
resulting in bifurcated and inefficient review. Additionally, 
the circuits have split on the question of which court may 
entertain constitutional challenges to criminal aliens' removal 
orders (a question left open in St. Cyr). All of this has 
resulted in piecemeal review, uncertainty, lack of uniformity, 
and a waste of resources both for the judicial branch and 
Government lawyers--the very opposite of what Congress tried to 
accomplish in 1996.
    Section 106 addresses the anomalies created by St. Cyr and 
its progeny by restoring uniformity and order to the law. 
First, under this section, criminal aliens have fewer 
opportunities to delay their removal, because they will not be 
able to obtain district court review in addition to circuit 
court review, and will not be able to ignore the thirty-day 
time limit on seeking review. Second, criminal aliens do not 
receive more judicial review than non-criminals. Under the 
amendments in section 106, all aliens will get review in the 
same forum--the courts of appeals. Third, by channeling review 
to the courts of appeals, section 106 eliminates the problems 
of bifurcated and piecemeal litigation. Thus, the overall 
effect of the proposed reforms is to give every alien a fair 
opportunity to obtain judicial review while restoring order and 
common sense to the judicial review process.
    Under section 106, all aliens who are ordered removed by an 
immigration judge will be able to appeal to the BIA and then 
raise constitutional and legal challenges in the courts of 
appeals. No alien, not even criminal aliens, will be deprived 
of judicial review of such claims. The Supreme Court has held 
that in supplanting the writ of habeas corpus with an 
alternative scheme, Congress need only provide a scheme which 
is an ``adequate and effective'' substitute for habeas 
corpus.\43\ Indeed, in St. Cyr itself, the Supreme Court 
recognized that ``Congress could, without raising any 
constitutional questions, provide an adequate substitute 
through the courts of appeals.'' \44\ By placing all review in 
the courts of appeals, section 106 provides an ``adequate and 
effective'' alternative to habeas corpus.
---------------------------------------------------------------------------
    \43\ See Swain v. Pressley, 430 U.S. 372, 381 (1977).
    \44\ St. Cyr, 533 U.S. at 314 n.38.
---------------------------------------------------------------------------
    Further, while the reforms in section 106 precludes 
criminals from obtaining review over non-constitutional, non-
legal claims, it does not change the scope of review that 
criminal aliens currently receive, because habeas review does 
not cover discretionary determinations or factual issues that 
do not implicate constitutional due process. Moreover, section 
106 does not preclude habeas review over challenges to 
detention that are independent of challenges to removal orders. 
Instead, it eliminates habeas review only over challenges to 
removal orders.
    Section 401-07. H-2B Visas. H-2B visas are temporary work 
visas that are available in all occupations when unemployed 
Americans cannot be found. The existence of the job itself must 
be temporary--the job must cease to exist within about one year 
or must be seasonal. Many resorts and amusement parks utilize 
H-2B visas for peak employment periods. Other examples include 
construction, landscaping and home health care jobs. The annual 
quota of H-2B visas is 66,000.
    The ``Mikulski'' amendment provided that aliens who had 
received H-2B visas in any of the last three years would not be 
counted toward the 2005 or 2006 quotas when receiving H-2B 
visas in those two years. In addition, the amendment 
establishes a $150 fraud prevention and detection fee for all 
H-2B visa petitions and it creates new administrative penalties 
(of up to $10,000 per violation and disbarment from being able 
to file new petitions for from one to five years) for a 
substantial failure to meet any of the conditions of the 
program or for a willful misrepresentation of a material fact 
in a petition. The amendment also provides that the H-2B cap 
shall be allocated for a fiscal year so that the total number 
of aliens subject to its numerical limits who enter the United 
States pursuant to a visa or are accorded H-2B status during 
the first 6 months of such fiscal year is not more than 33,000. 
Finally, the amendment provides that the Secretaries of State 
and Homeland Security shall periodically provide Congress with 
information about the use of the H-2B program.
    Section 501. Reciprocal Visas for Nationals of Australia. 
``H-1B'' visas are available for workers coming temporarily to 
the United States to perform services in a specialty 
occupation, usually requiring a bachelor's or higher degree in 
the specific speciality. The annual quota on H-1B visas is 
65,000 (with certain recipients not counted towards the cap). 
Employers must pay H-1B aliens the prevailing wage and meet 
other program requirements. The ``Frist'' amendment creates a 
new ``E-3'' temporary work visa for Australian nationals that 
mirrors the requirements of the H-1B program but has a separate 
annual quota of 10,500.
    Section 502. Visas for Nurses. The ``Hutchison'' amendment 
makes a pool of 50,000 immigrant visas available for aliens who 
have been approved for employment-based preference visas as 
nurses or physical therapists. These visas will remain 
available until exhausted.
    Legislative History.--On January 26, 2005, Chairman F. 
James Sensenbrenner, Jr., introduced H.R. 418, the REAL ID Act 
of 2005. On February 10, 2005, the House passed H.R. 418 as 
amended by a vote of 261-161. On May 11, 2005, the President 
signed into law H.R. 1268, the Emergency Supplemental 
Appropriations Act for Defense, the Global War on Terror, and 
Tsunami Relief, 2005 (Pub. L. No. 109-13), division B of which 
contained the language of H.R. 418 in modified form with 
additional immigration provisions.
            The Western Hemisphere Travel Initiative
    Summary.--Section 7209 of the Intelligence Reform and 
Terrorism Prevention Act of 2004 (Pub. L. No. 108-458) provided 
that the Secretary of State shall develop and implement a plan 
to require biometic passports or other identification at least 
as secure, for all travel into the U.S. by U.S. citizens, to be 
implemented no later than January 2008, and shall develop and 
implement a plan to require biometic passports or other 
identification at least as secure, for all travel into the U.S. 
by Canadians, to be implemented no later than January 2008. The 
Department of Homeland Security Appropriations Act, 2007, 
modifies the deadline to be the earlier of June 1, 2009, or 
three months after the Secretary of State and the Secretary of 
Homeland Security make a certification that (1) the National 
Institute of Standards and Technology certifies that a card 
architecture has been selected that meets International 
Organization for Standardization security standards and meets 
best available practices for protection of personal 
identification documents, (2) passport card technology has been 
shared with the Canadian and Mexican governments, (3) an 
agreement has been reached with the U.S. Postal Service on the 
fee for the passport card, (4) an alternate procedure has been 
developed for groups of children crossing the border, (5) 
infrastructure and training has been provided for use of the 
passport card, (6) the passport card has been made available to 
U.S. citizens, and (7) a single implementation date has been 
set for sea and land borders.
    Legislative History.--On May 22, 2006, Representative 
Harold Rogers introduced H.R 5441, the Department of Homeland 
Security Appropriations Act, 2007. On July 13, 2006, the Senate 
passed H.R. 5441, sec. 538 of title V of which contained the 
language delaying implementation of the Western Hemisphere 
Travel Initiative. On September 28, 2006, the conference report 
to H.R. 5441 was filed (H. Rept. 109-699), sec. 546 of title V 
of which contained this language. The House passed the 
conference report on September 29 by a vote of 412-6, and the 
Senate passed the conference report on the same day by voice 
vote. On October 4, 2006, the President signed into law the 
conference report to H.R. 5441 (Pub. L. No. 109-295).

H.R. 3199, the ``USA PATRIOT and Terrorism Prevention Reauthorization 
        Act of 2005''

    Summary.--Chairman Sensenbrenner introduced H.R. 3199 on 
June 11, 2005, which reauthorized the 16 provisions in the USA 
PATRIOT Act and two provisions in the Intelligence Reform and 
Terrorism Prevention Act of 2004 (IRTPA). Fifteen of the 
provisions were set to expire in December 2005 and one 
provision was set to expire in December 2006. Of the USA 
PATRIOT Act authorities set to expire, H.R. 3199 permanently 
extended 14 provisions and extended two for an additional 4 
years. The Act also permanently extended one provision in IRTPA 
and extended the other for 4 years. IRTPA reformed and enhanced 
authorities for the intelligence community, terrorism 
prevention and prosecution, border security, and international 
cooperation and coordination.
    H.R. 3199 was based on four years of comprehensive, 
bipartisan oversight consisting of hearings, testimony, 
Inspector General reports, briefings, and oversight letters. 
For the 109th Congress, the Committee on the Judiciary held two 
Full Committee, nine Subcommittee oversight hearings, and one 
``minority-day'' hearing on the provisions of USA PATRIOT Act 
that were set to expire on December 31, 2005 and several that 
were not subject to the sunset.
    The terrorists who attacked us on September 11th exploited 
weaknesses in our own law enforcement and intelligence laws and 
practices, and those plotting to attack us again will continue 
to exploit any gaps or weaknesses. To address these problems, 
Chairman Sensenbrenner introduced H.R. 2975, to ``Provide 
Appropriate Tools Required to Intercept and Obstruct Terrorism 
Act of 2001,'' on October 2, 2001. H.R. 2975 was unanimously 
reported by the Judiciary Committee. The House and Senate 
combined their versions of the legislation into H.R. 3162, the 
``Uniting and Strengthening America by Providing Appropriate 
Tools Required to Intercept and Obstruct Terrorism Act of 
2001,'' (USA PATRIOT Act). This legislation incorporated 
provisions of H.R. 3004 (107th), the ``Financial Anti-Terrorism 
Act,'' which increased penalties for money laundering and 
financing terrorist organizations; and H.R. 3160 (107th), the 
``Bioterrorism Prevention Act of 2001,'' which provided law 
enforcement personnel greater resources to assess and prevent 
biological attacks on American soil. The USA PATRIOT Act was 
signed into law by President Bush on October 26, 2001.\45\ Due 
to the concerns that the USA PATRIOT Act new authorities could 
lead to civil liberties violations, Congress included reporting 
requirements and a sunset provision in the USA PATRIOT Act that 
covered 16 law enforcement authorities.
---------------------------------------------------------------------------
    \45\ Pub. L. No. 107-56, 115 Stat 272 (codified as amended in 
scattered sections of 18 U.S.C. (2003)).
---------------------------------------------------------------------------
    The USA PATRIOT Act tore down the Wall that prevented 
agents from ``connecting the dots'' of the pending 9/11 attack. 
H.R. 3199 would reauthorize key provisions of the USA PATRIOT 
Act to ensure that the Wall will never be rebuilt. The USA 
PATRIOT Act updated our investigative tools to better detect, 
dismantle, and prevent terrorist acts by an unscrupulous, 
deadly enemy. H.R. 3199 continues to support the efforts of our 
law enforcement with these updated investigative tools. The USA 
PATRIOT Act strengthened the penalties for attacking mass 
transportation systems. H.R. 3199 further enhances those 
penalties to conform the penalties for trains and mass transit 
and responds to the clear and present danger that the 
terrorists pose against our citizens as they travel. The USA 
PATRIOT Act effectively targeted terrorist financing and now 
terrorists have turned more and more to criminal activities and 
profits from theft and the illegal drug trade. H.R. 3199 
addresses the new trends in terrorism financing, narco-
terrorism, and the use of illicit contraband. H.R. 3199 also 
adopted new reporting requirements and incorporated new 
standards and protections against abuse.
    Legislative History.--H.R. 3199 was introduced by 
Representative F. James Sensenbrenner Jr., on July 11, 2005. 
The same day, the legislation was referred to the Committee on 
the Judiciary, and in addition to the Committee on Intelligence 
(Permanent Select), for a period to be subsequently determined 
by the Speaker, in each case for consideration of such 
provisions as fall within the jurisdiction of the committee 
concerned. On July 13, 2005, the Judiciary Committee met in 
open session and ordered favorably reported the bill H.R. 3199 
with amendment by a recorded vote of 23 yeas to 14 nays and 2 
passes, a quorum being present voice vote. (H. Rept. No. 109-
174, Part I). On July 21, 2005, the bill passed by a recorded 
vote of 257 yeas to 171 nays (Roll no. 414). November 9, 2005, 
Chairman Sensenbrenner asked unanimous consent that the House 
disagree to the Senate amendment, and agree to a conference. On 
December 8, 2005, the Conference agreed to file a report. On 
December 14, 2005, the conference report was agreed to in the 
House by 251 yeas to 174 nays. (Roll no. 627). The Senate 
failed to end debate on December 16, 2005 when cloture was not 
invoked. The vote was 52 yeas and 47 nays. (Record Vote Number: 
358). On March 2, 2006, the Senate agreed to the conference 
report by 89 yeas to 10 nays. On March 9, 2006, the President 
signed H.R. 3199 and it became public law 109-177.

                 Oversight Hearings on the Patriot Act


Oversight Hearing on the ``USA PATRIOT Act: A Review for the Purpose of 
        Its Reauthorization'' (April 6, 2005, Serial No. 109-12)

    Witnesses: The Honorable Alberto Gonzales, Attorney General 
of the United States

Oversight Hearing on ``Reauthorization of the USA PATRIOT Act'' (June 
        8, 2005, Serial No. 109-10)

    Witnesses: The Honorable James B. Comey, Deputy Attorney 
General, United States Department of Justice

Oversight Hearing on ``Reauthorization of the USA PATRIOT Act, 
        continued'' (June 10, 2005, Serial No. 109-29)

    Witnesses: Carlina Tapia-Ruano, First Vice President, 
American Immigration Lawyers Association; Dr. James J. Zogby, 
President, Arab American Institute; Deborah Pearlstein, 
Director, U.S. Law and Security Program; Chip Pitts, Chair of 
the Board, Amnesty International USA.

                Other Full Committee Oversight Hearings


Oversight Hearing on ``United States Department of Justice'' (Serial 
        No. 109-137)

    Witnesses: The Honorable Alberto Gonzales, Attorney General 
of the United States

Oversight Hearing on ``RECKLESS JUSTICE: Did the Saturday Night Raid of 
        Congress Trample the Constitution?'' (Serial No. 109-122)

    Witnesses: On May 30, 2006, the Judiciary Committee 
conducted an oversight hearing on the constitutional questions 
raised by the FBI's raid of Rep. Jefferson's Capitol Hill 
office. The following witnesses testified before the Committee: 
Professor Charles Tiefer, Law Professor at the University of 
Baltimore School of Law and former Assistant Legal Counsel to 
the Senate (1979-1984), and Solicitor and Deputy General 
Counsel to the House (1984-1995); The Honorable Robert S. 
Walker, former Representative from Pennsylvania and former 
Chairman of the Science Committee; Professor Jonathan Turley, 
Professor of Law at George Washington University Law School; 
and Mr. Bruce Fein, Esq., Principal at the Lichfield Group.
    Professor Tiefer testified that in his experience as Deputy 
General Counsel to the House of Representatives and Assistant 
Legal Counsel to the Senate, the FBI's raid on Congressman 
Jefferson's Capitol Hill office was unprecedented. Professor 
Tiefer stated that in his tenure there had been numerous 
investigations of Members of Congress for possible criminal 
activities, but that the Department of Justice and the Federal 
Bureau of Investigation had always respected Congress as a co-
equal branch of government by not executing a search warrant on 
Congressional premises. Rather, in his experience, the FBI or 
Justice Department would obtain a subpoena for the materials 
they were seeking, and would allow the subject of the 
investigation, together with the House General Counsel, to 
assert a legislative privilege over any documents that were 
covered by the Speech or Debate Clause of the United States 
Constitution.
    Congressman Walker testified that the FBI's raid on a co-
equal branch of government was of grave concern. He recommended 
that Congress demand the return of the documents seized during 
the raid, and that Congress conduct an extensive inquiry into 
the decision-making process that allowed the unprecedented 
search of a sitting Congressman's office. He also recommended 
that Congress work with the executive to establish a series of 
rules and guidelines for handling any similar incidents in the 
future.
    Professor Turley testified that the search of Congressman 
Jefferson's office was unprecedented, and that it violated the 
spirit, if not the letter, of the Constitutional protections of 
the Speech or Debate Clause. Professor Turley testified that 
the Speech or Debate Clause was taken from the English 
Parliament's privileges--privileges that had arisen because of 
the Crown's encroachment on Parliament's legislative functions. 
Professor Turley stressed that there were other, less intrusive 
methods that prosecutors could have used to obtain the 
materials they sought without implicating the separation of 
powers concerns raised by the FBI's actions in this case.
    Mr. Fein testified that, if anything, the concerns 
implicated by the Speech or Debate Clause are more important 
today than they were at the country's founding given the number 
of federal criminal statutes that could now be used to justify 
a search of a Congressman's office. He advocated that Congress 
enact a statute that would protect against these types of 
searches. The model for such a statute could be found in the 
Privacy Protection Act of 1980, which Congress enacted to 
mitigate the constitutional questions raised by a search on a 
newspaper office.

                  Other Matters Held at Full Committee


H.R. 9, the Fannie Lou Hamer, Rosa Parks and Coretta Scott King Voting 
        Rights Act Reauthorization and Amendments Act of 2006

    Summary.--H.R. 9, the Fannie Lou Hamer, Rosa Parks and 
Coretta Scott King Voting Rights Act Reauthorization and 
Amendments Act of 2006 reauthorizes and amends the Voting 
Rights Act of 1965. In addition to reauthorizing the expiring 
provisions for an additional 25 years, H.R. 9 amends certain 
provisions of the Voting Rights Act of 1965, including 
terminating the Federal examiner provisions and amending 
Section 5 to restore the provision's purpose and effect prongs 
that had been significantly weakened by recent Supreme Court 
decisions. H.R. 9 also amends Section 203, the bilingual 
election assistance provision, to reflect changes in the data 
collection method utilized by the U.S. Census Bureau and 
authorizes the General Accountability Office to conduct a study 
on the effectiveness of Section 203's bilingual assistance 
requirements.
    Legislative History.--H.R. 9 was introduced on May 2, 2006, 
by Chairman Sensenbrenner. A companion bill was introduced in 
the Senate at the same time by Senate Judiciary Committee 
Chairman Specter. H.R. 9 was referred to the House Judiciary 
Committee, where two legislative hearings were conducted by the 
House Judiciary Subcommittee on the Constitution on May 4, 
2006. Testimony was taken during the first legislative hearing 
titled ``A Bill to Reauthorize and Amend the Voting Rights Act 
of 1965: Part I'' from the following witnesses: Mr. J. Gerald 
Hebert, Former Acting Chief, Civil Rights Division, Department 
of Justice and voting litigation expert; Mr. Roger Clegg, 
President and General Counsel, Center for Equal Opportunity; 
and Mr. Debo Adegbile, Associate Director of Litigation, NAACP 
Legal Defense and Education Fund, Inc.
    Mr. Adegbile testified on the need for H.R. 9 to continue 
the protections afforded by the expiring provisions for an 
additional 25 years and to make certain amendments to 
provisions that had been significantly weakened by the Supreme 
Court over the last several years.
    Mr. Clegg testified against H.R. 9 and reauthorizing the 
VRA generally. In particular, Mr. Clegg testified on the 
weakness of the Judiciary Committee's record and the inability 
of the record to sustain an almost certain constitutional 
challenge.
    Mr. Hebert testified in support of H.R. 9 and the record 
compiled by the House Judiciary Committee. In particular, Mr. 
Hebert testified to the number of hearings held by the 
Subcommittee on the Constitution and the strength of the 
evidence compiled by the House Judiciary Committee to support 
continuing the expiring provisions for an additional 25 years.
    The second hearing, titled ``A Bill to Reauthorize and 
Amend the Voting Rights Act of 1965: Part II,'' was also held 
and testimony was taken from the following witnesses: Ms. Rena 
Comisac, Principal Deputy Assistant Attorney General, Civil 
Rights Division, Department of Justice; The Honorable Chris 
Norby, Supervisor, Fourth District, Orange County Board of 
Supervisors; Ms. Karen Narasaki, President and Executive 
Director, Asian-American Justice Center; and Dr. James Tucker, 
Voting Rights Consultant, NALEO Educational Fund, and Adjunct 
Professor, Barrett Honors College, Arizona State University.
    Ms. Comisac testified, on behalf of the Department of 
Justice, in support of H.R. 9 and the need to continue the 
Act's bilingual assistance provisions for an additional 25 
years.
    Mr. Norby presented testimony on the concerns that election 
officials had with renewing Section 203 for an additional 25 
years. Mr. Norby expressed concerns about the cost of 
implementing Section 203, the Department of Justice's use of a 
surname to identify potential recipients of bilingual 
assistance, and the inadequacy of Section 203's definition of 
what it means to be limited English proficient.
    Ms. Narasaki testified in support of H.R. 9 in order to 
continue the progress that has been made among language 
minority citizens, particularly among Asian Americans. Ms. 
Narasaki testified on the impact that Section 203 has had on 
increasing the registration and turnout rates among single 
language minority citizens, particularly since 1992 when 
Congress inserted the 10,000 single language minority threshold 
into Section 203's formula and the need to continue the 
coverage formula over the next 25 years.
    Dr. Tucker testified in support of H.R. 9 and the 
effectiveness of the bilingual election assistance provisions 
in enabling illiterate citizens to participate in the political 
process. Dr. Tucker presented evidence revealing the continued 
disparities in educational opportunities between populations 
covered by Section 203's assistance provision and white 
citizens as well as the limited number of English as Second 
Language (ESL) literacy centers and the long waiting times to 
attend the existing literacy centers. Dr. Tucker testified that 
the continued disparities and limited number of ESL centers 
justified extending Section 203's bilingual assistance 
provision for an additional 25 years.
    On May 10, 2006, the House Judiciary Committee met in open 
session to consider H.R. 9 for purposes of a markup. An 
amendment authorizing GAO to conduct a study on the 
effectiveness of Section 203, was offered and accepted. A 
quorum being present, H.R. 9 was ordered favorably reported as 
amended by a roll call vote of 33 to 1. On May 22, 2006, H.R. 9 
was reported (H. Rept. 109-478). On July 13, 2006, the House 
passed H.R. 9 by a vote of 390 to 33. On July 20, 2006, the 
Senate took up and passed without amendment H.R. 9 by a vote of 
98 to 0. H.R. 9 was presented to the President and signed into 
law on July 27, 2006 (Pub. L. No. 109-246).

H.R. 841, the Continuity in Representation Act

    Summary.--H.R. 841 requires the expedited special election 
of new Members within 49 days in the event more than 100 
Members are killed in extraordinary circumstances. Special 
provisions in H.R. 841 govern absentee ballots cast by members 
of our armed forces, and overseas voters, who would have the 
right to have their vote accepted if it is received within 45 
days after the State transmits the ballots to them. Further, 
federal laws governing the administration of elections for 
federal office are explicitly preserved.
    Legislative History.--H.R. 841 was introduced by Rep. 
Sensenbrenner on February 16, 2005. No hearings were held on 
H.R. 841 during this Congress, although a hearing was held by 
the House Administration Committee on similar legislation 
during the last Congress. On February 17, 2005, H.R. 841 was 
reported out of the House Administration Committee by voice 
vote. On February 24, 2005, H.R. 841 was discharged from the 
Judiciary Committee, and it passed the House by a vote of 329 
to 68. Identical legislation became part of P.L. 109-55.

H.R. 1595, To implement the recommendations of the Guam War Claims 
        Review Commission

    Summary.--The Committee on the Judiciary received a 
sequential referral of H.R. 1595 and considered the legislation 
as reported by the Committee on Resources. The legislation 
would have authorized the U.S. Foreign Claims Settlement 
Commission to set up a claims process to pay claims for death 
or injury during the World War II Japanese occupation of Guam. 
The legislation provided for funding of those payments from the 
Judgement Fund (31 U.S.C. sec. 1304). Claims would have been 
paid for death, personal injury, forced labor, forced marching, 
and internment of citizens of Guam during the occupation. The 
legislation considered by the Committee would have included a 
second category of personal injury claims by survivor 
claimants, when the original claimant was deceased. Those 
claims would have been eligible for a payment of $7,000 
regardless of the severity of injury.
    Legislative History.--On April 13, 2005, Representative 
Madeleine Bordallo introduced H.R. 1595. On April 25, 2006, the 
Committee on Resources reported the bill as amended (H. Rept. 
109-437, Part 1). On the same day, the Committee on the 
Judiciary received a sequential referral of the legislation 
until June 9, 2006. On June 6, 2005, the Committee ordered H.R. 
1595 reported by voice vote as amended by the Committee on 
Resources. On June 9, 2006, the Committee reported H.R. 1595 
(H. Rept. 109-437, Part II). No further action was taken on 
H.R. 1595.

H.R. 2389, the Pledge Protection Act of 2005

    Summary.--The Pledge of Allegiance reads: ``I pledge 
allegiance to the Flag of the United States of America, and to 
the Republic for which it stands, one Nation under God, 
indivisible, with liberty and justice for all.'' Although the 
United States Supreme Court reversed and remanded the Ninth 
Circuit's latest holding striking down the Pledge as 
unconstitutional, the Supreme Court did so on the grounds that 
the plaintiff lacked the legal standing to bring the case. The 
concurring Justices concluded that the Court in its decision 
``erect[ed] a novel prudential standing principle in order to 
avoid reaching the merits of the constitutional claim.'' In 
order to protect the Pledge from federal court decisions that 
would have the effect of invalidating the Pledge across several 
states, including a case that is currently pending before the 
Ninth Circuit, H.R. 2389 would reserve to the state courts the 
authority to decide whether the Pledge is valid within each 
state's boundaries and place final authority over a state's 
Pledge policy in the hands of the states themselves.
    Legislative History.--H.R. 2389, the ``Pledge Protection 
Act of 2005,'' was introduced by Rep. Todd Akin on May 17, 
2005. No hearings were held on H.R. 2389. On June 28, 2006, the 
Committee failed to report H.R. 2389 favorably by a vote of 15 
to 15. On July 19, 2006, H.R. 2389 passed the House (as 
amended) by a vote of 260 to 167.

H.R. 3402, the ``Violence Against Women and Department of Justice 
        Reauthorization Act of 2005''

    Summary.--This comprehensive package was negotiated between 
the House and Senate to reauthorize vital programs within the 
Department of Justice to combat all crimes and programs within 
the Office of Violence Against Women to specifically target 
crimes of domestic violence, dating violence, sexual assault, 
and stalking.
    Authorization is an important oversight tool that allows 
Congress and committees of jurisdiction to create, amend, 
extend, and set priorities for programs within executive 
agencies. Despite the law's requirement for regular 
Congressional authorization of the Justice Department, until 
recently DOJ had not been formally authorized by Congress since 
1980. The Committee on Judiciary took action to rectify the 
situation in the 107th Congress and reauthorized the programs 
within the Department of Justice. In the 109th Congress, the 
Committee again developed legislation to provide Congress with 
legislation to give direction to the Department of Justice and 
the important programs it administers.
    Titles I through IX of this bill focus on reauthorizing, 
expanding, and improving programs that were established in the 
Violence Against Women Act of 1994 and reauthorized in 2000. 
The bill reauthorizes some important core programs such as STOP 
grants and grants to reduce campus violence. Because these 
crimes affect both genders, it is important to note that the 
text of the legislation specifies that programs addressing 
these problems are intended to serve both female and male 
victims.
    Additionally, this legislation specifies that the same 
rules apply to these funds as to other Federal grant programs. 
It is illegal to use the grant funds devoted to these programs 
for political activities or lobbying. It is the intent of 
Congress that these funds be used to provide services to 
victims and train personnel who deal with these violent crimes. 
The Department of Justice is expected to enforce that provision 
for all its grants and monitor grant activities to ensure 
compliance not only with this condition, but all the conditions 
of the grants.
    Title X of the legislation makes important changes to laws 
governing the collection of DNA samples. Current law allows 
Federal authorities to collect DNA samples from individuals 
upon indictment. This provision expanded that authority to 
permit the Attorney General to collect DNA at arrest or 
detention of non-citizens. Because of this expansion, this 
section also amended the current expungement protocols and 
directs the FBI to remove samples in the event of an overturned 
conviction, acquittal, or the charge was dismissed.
    States may seek funding to reduce the backlog in crime 
scene evidence, to reduce the backlog in DNA samples of 
offenders convicted of qualifying state offenses, or to enhance 
the State's DNA laboratory capabilities. This section of Title 
X expanded the grant purpose regarding offender DNA samples to 
include all samples collected under applicable state law; 
accordingly, States can now use federal funding to test samples 
collected from arrestees or voluntary elimination samples. 
Finally, this section repealed a carve-out authorizing John Doe 
indictments in sexual assault crimes and made uniform the 
federal law that tolls the statute of limitations for all 
federal crimes where DNA evidence is collected (Sec. 3297).
    Title XI will ensure further accountability from the 
Department with a number of provisions designed to ensure grant 
recipients are meeting the conditions established by Congress 
for the programs. The bill includes an Office of Audit, 
Assessment, and Management to monitor grants and a Community 
Capacity Development Office to assist grant applicants and 
grantees in meeting grant conditions.
    In addition to the numerous oversight tools provided in the 
Act, there are a number of important reforms of grant programs 
and provisions designed to improve programs and offices within 
the Department. Title XI consolidates the Local Law Enforcement 
Block Grant program and the Byrne grant program into one 
program with the same purposes to eliminate duplication and 
improve administration of the grants. Additionally, it 
preserves the COPS program, but addresses concerns expressed by 
many Members about the previous use of the these grants. This 
will allow grantees greater flexibility in the use of these 
funds.
    Title XI also reauthorizes DOJ programs that will expire or 
have expired, such as the Juvenile Accountability Block Grants 
program and the Sex Offender Management program, as well as 
some very important modifications to the criminal code such as 
extending the statute of limitations for human trafficking 
offenses and applying increased criminal penalties to prison 
guards who sexually abuse persons in their custody.
    Legislative History.--The legislation was introduced on 
July 22, 2005, on a bipartisan basis with Chairman 
Sensenbrenner, Ranking Member Conyers, Rep. Coble, Rep. Weiner, 
Rep. Green, Rep. Solis, Rep. Brown-Waite, and Rep. Schiff. On 
July 27, 2005, the Committee met in open session and ordered 
reported favorably, with amendment, the legislation, H.R. 3402, 
on a voice vote. The legislation passed by the House of 
Representatives, with amendment, by a vote of 415-4, on 
September 28, 2005. H.R. 3402 passed the Senate with amendment 
by unanimous consent on December 16, 2005. The House of 
Representatives agreed to suspend the rules and pass the 
legislation, as amended by the Senate, by voice vote on 
December 17, 2005. The legislation was signed by the President 
on January 5, 2006, and became Public Law 109-162.

H.R. 3505, the Financial Services Regulatory Relief Act of 2005

    Summary.--Congressman Jeb Hensarling introduced H.R. 3505 
on July 28, 2005. The bill amends various provisions of federal 
banking and securities laws to provide regulatory relief and 
promote greater efficiency and productivity for federally-
insured depository institutions.
    Legislative History.--H.R. 3505 was referred sequentially 
to the House Judiciary Committee on December 17, 2005, and the 
Committee was granted extensions to further consider the bill 
until February 24, 2006. On February 15, 2006, the Judiciary 
Committee held a mark-up and ordered H.R. 3505 favorably 
reported by voice vote. The Committee filed H. Rept. 109-356, 
Part II on February 16, 2006. On March 8, 2006, the House 
considered H.R. 3505 under suspension of the rules and passed 
the bill by a vote of 415-2. For further action see S. 2856, 
which became Pub. L. No. 109-351.

H.R. 3736, the Katrina Volunteer Protection Act

    Summary.--H.R. 3736 would provide a uniform federal floor 
on which all volunteers can confidently stand when helping 
those in need in the wake of Hurricane Katrina. H.R. 3736 
provides that any person or entity that, in response to 
Hurricane Katrina, voluntarily, in good faith, and without a 
preexisting duty or expectation of compensation, renders aid, 
medical treatment, or rescue assistance to any person, shall 
not be liable for injuries alleged to have been sustained by 
such person or entity unless the alleged injuries were caused 
by willful, wanton, reckless, or criminal conduct on the part 
of the volunteer. H.R. 3736 also does not apply to any person 
or entity whose conduct constitutes a violation of a Federal or 
State civil rights law.
    Legislative History.--H.R. 3736 was introduced by Rep. 
Sensenbrenner on September 13, 2005. On September 14, 2005, it 
passed the House on the Suspension Calendar by voice vote. No 
further action on this legislation was taken by the Senate.

H.R. 4698, the Disaster Relief Volunteer Protection Act

    Summary.--H.R. 4698 would provide liability relief for 
volunteers engaged in responses to disasters. The bill applies 
if the circumstances are covered by a ``Disaster Declaration,'' 
which could be either (1) a public health emergency declaration 
by the Secretary of Health and Human Services; (2) a 
declaration of a public health emergency or a risk of such 
emergency as determined by the Secretary of Homeland Security; 
or (3) an emergency or major disaster declaration by the 
President. Regarding disaster relief volunteers, the bill 
provides that a disaster relief volunteer shall not be liable 
for any injury caused by an act or omission of such volunteer 
in connection with such volunteer's providing or facilitating 
the provision of disaster relief services if (1) the injury was 
not caused by willful, wanton, reckless, or criminal misconduct 
by the volunteer, or conduct that constitutes a violation of 
Federal or State civil rights laws; and (2) the injury was not 
caused by the volunteer's operating a motor vehicle, vessel, 
aircraft, or other vehicle for which the state requires the 
operator or the owner of the vehicle, craft, or vessel to 
possess an operator's license or maintain insurance. The bill 
also protects from the threat of liability those who employ or 
are in a business partnership with disaster relief volunteers, 
and also those who host, work with, or make their facilities 
available to a disaster relief volunteer to enable such 
volunteer to provide disaster relief services. These provisions 
protect individuals, businesses, and governments from liability 
for the actions of any volunteers to whom they make facilities 
available to further their volunteer efforts. Regarding 
nonprofit organizations themselves, the bill provides that a 
nonprofit organization shall not be liable for any injury 
caused by its actions or omissions in connection with the 
nonprofit organization's providing or facilitating the 
provision of disaster relief services if the injury was not 
caused by willful, wanton, reckless, or criminal misconduct by 
the nonprofit organization, or conduct that constitutes a 
violation of Federal or State civil rights laws. Regarding the 
liability of governmental and intergovernmental entities, the 
bill provides that if they donate to an agency or 
instrumentality of the United States disaster relief goods, 
they shall not be liable for any injury caused by such donated 
goods if the injury was not caused by willful, wanton, 
reckless, or criminal misconduct by such governmental or 
intergovernmental entity, or conduct that constitutes a 
violation of Federal or State civil rights laws. The bill also 
protects disaster relief volunteers and governmental or 
intergovernmental entities donating disaster relief goods from 
punitive damages, unless the claimant establishes by clear and 
convincing evidence that its damages were proximately caused by 
willful, wanton, reckless, or criminal misconduct, or conduct 
that constitutes a violation of Federal or State civil rights 
laws. The bill also protects disaster relief volunteers and 
governmental or intergovernmental entities donating disaster 
relief goods under a ``fair share'' rule under which damages 
for liability for noneconomic losses, if permitted, shall be 
allocated in direct proportion to the percentage of 
responsibility of that defendant. Finally, the bill applies its 
liability protections to anyone who volunteers and provides a 
service of a type that generally requires a license, 
certificate, or authorization, provided such volunteer is 
licensed, certified, or authorized to provide such services in 
any State, even if such State is not the State in which the 
disaster relief volunteer provides disaster relief services.
    Legislative History.--H.R. 4698 was introduced by Rep. 
Sensenbrenner on February 2, 2006. On March 15, 2006, it was 
ordered reported by the House Judiciary Committee (as amended) 
by a vote of 16 to 9.

H.R. 4709, the Telephone Records and Privacy Protection Act of 2006

    Summary.--Congressman Lamar Smith introduced H.R. 4709 on 
February 8, 2006. The bill amends title 18 of the United States 
Code to provide criminal penalties for the fraudulent 
acquisition or unauthorized disclosure of telephone records.
    Legislative History.--H.R. 4709 was referred to the House 
Judiciary Committee on February 8, 2006. On March 2, 2006, the 
Judiciary Committee held a mark-up and ordered the bill 
favorably reported by voice vote. The Committee filed H. Rept. 
109-395 on March 16, 2006. On April 25, 2006, the House 
considered H.R. 4709 under suspension of the rules and passed 
the bill by a vote of 409-0.

H.R. 4356, the Emergency and Disaster Assistance Fraud Penalty 
        Enhancement Act of 2005

    Summary.--Chairman F. James Sensenbrenner, Jr. introduced 
H.R. 4356 on November 17, 2005. The bill amends title 18 of the 
United States Code to provide a new criminal penalty for fraud 
in connection with emergency or major disaster benefits, and 
increases criminal penalties for mail and wire fraud in 
connection with such benefits.
    Legislative History.--H.R. 4356 was referred to the House 
Judiciary Committee on November 17, 2005, and to the 
Subcommittee on Crime, Terrorism and Homeland Security on 
February 2, 2006. The Subcommittee on Crime, Terrorism and 
Homeland Security was discharged from consideration of the bill 
on February 24, 2006. On March 2, 2006, the Judiciary Committee 
held a mark-up and ordered the bill favorably reported by voice 
vote. On May 19, 2006, the Committee filed H. Rpt. 109-473. On 
June 20, 2006, the House considered H.R. 4356 under suspension 
of the rules and passed the bill by voice vote.

H.R. 4127, the Data Accountability and Trust (DATA) Act of 2006

    Summary.--Congressman Cliff Stearns introduced H.R. 4127 on 
October 25, 2005. The bill requires owners and possessors of 
personal data in electronic form to adopt security policies to 
protect the data, and provides for nationwide notice to 
consumers in the event of a breach of such data.
    Legislative History.--The bill was reported from the House 
Committee on Energy and Commerce on March 29, 2006 by a vote of 
41-0. The bill was jointly and sequentially referred to the 
House Judiciary Committee on May 4, 2006 for a period ending 
not later than June 2, 2006. On May 25, 2006, the Judiciary 
Committee held a mark-up and ordered the bill favorably 
reported by voice vote. On May 26, 2006, the Committee filed H. 
Rpt. 109-453, Part II. The bill was placed on the Union 
Calendar and there was no further action on the legislation.

H.R. 5228, To require representatives of governments designated as 
        State Sponsors of Terrorism to disclose to the Attorney General 
        lobbying contacts with legislative branch officials, and for 
        other purposes

    Summary.--The purpose of H.R. 5228 is to require enhanced 
disclosure of the lobbying activities of State Sponsors of 
Terror. The bill would amend the Foreign Agents Registration 
Act to require that the agents of a State Sponsor of Terrorism 
file detailed reports of their lobbying contacts with Members 
of Congress within 45 days of that contact.
    Legislative History.--Rep. Lincoln Diaz-Balart introduced 
H.R. 5228 on April 27, 2006, and the bill was referred to the 
Committee on the Judiciary and the Subcommittee on Crime, 
Terrorism, and Homeland Security as well as the Committee on 
International Relations. Neither committee took further action 
on the bill. The House of Representatives considered H.R. 5228 
under suspension of the rules on June 20, 2006, and the bill 
failed by a vote of 263 to 159.

H.R. 5285, the ``Electronic Surveillance Modernization Act''

    Summary.--Representative Heather Wilson, Chairman 
Sensenbrenner, and Select Committee on Intelligence Chairman 
Hoekstra, and others introduced H.R. 5825, the ``Electronic 
Surveillance Modernization Act,'' on July 18, 2006. This bill 
would strengthen oversight of the executive branch and enhance 
accountability by requiring the Government to provide more 
information to the courts and to each Member of the House and 
Senate Intelligence Committees; would modernize and simplify 
the process for getting a FISA warrant and clarify its scope 
and applicability; would update FISA to account for technology 
changes in 21st Century communications; would clarify the 
authority of our intelligence agencies in the event of an 
attack on the United States; and would clarify the President's 
authority and the Congress' oversight of surveillance programs. 
The testimony presented at two hearings before the Subcommittee 
on Crime, Terrorism, and Homeland Security, demonstrated that 
the FISA process must be streamlined and technology-neutral.
    Legislative History.--The Committee on the Judiciary 
Subcommittee on Crime, Terrorism, and Homeland Security held 
two hearings on H.R. 5825 on the 6th and 12th of September 
2006. On September 20, 2006, the Committee met in open session 
and ordered favorably reported the bill, H.R. 5825, with an 
amendment, by roll call vote with 20 ayes and 16 nays, a quorum 
being present. The bill was reported to the House on November 
29, 2001 (H. Rept. 109-630, Part II). The House passed the bill 
on September 28, 2006, by a recorded vote (Roll No. 502) of 232 
yeas to 191 nays. No further action was taken on the bill, H.R. 
3209, during the 109th Congress.

H.R. 5318, the Cyber-Security Enhancement and Consumer Data Protection 
        Act of 2006

    Summary.--On May 9, 2006, Chairman F. James Sensenbrenner, 
Jr. introduced H.R. 5318. The bill amends provisions of title 
18, United States Code to increase penalties for computer 
crimes and identity theft, and provides for notice to federal 
law enforcement in the event of a breach of computer systems 
containing personal data.
    Legislative History.--The bill was referred to the 
Subcommittee on Crime, Terrorism and Homeland Security on May 
9, 2006. The Crime Subcommittee held hearings on the bill on 
May 11, 2006. The Subcommittee held a mark-up and ordered the 
bill favorably reported by voice vote on May 18, 2006. On May 
25, 2006, the Judiciary Committee held a mark-up and ordered 
the bill favorably reported by voice vote, with a manager's 
amendment. On June 22, 2006, the Committee filed H. Rept. 109-
522 and the bill was placed on the Union Calendar.

H.R. 6427, a bill to increase the amount in certain funding agreements 
        relating to patents and nonprofit organizations to be used for 
        scientific research, development, and education, and for other 
        purposes

    Summary.--Introduced by Representative Tom Latham, H.R. 
6427 increases the statutory royalty stream for smaller 
government entities which partner with nonprofit organizations 
under the Bayh-Dole Act to license patented inventions.
    Legislative History.--On December 6, 2006, the House passed 
H.R. 6427 without amendment by voice vote.

               RESOLUTIONS REFERRED TO THE FULL COMMITTEE

H. Res. 210, supporting the goals of World Intellectual Property Day, 
        and recognizing the importance of intellectual property in the 
        United States and worldwide

    Summary.--Introduced by Representative F. James 
Sensenbrenner, Jr., H. Res. 210 expresses support for the goals 
of World Intellectual Property Day (April 26, 2005) to promote, 
inform, and teach the importance of intellectual property as a 
tool for economic, social, and cultural development. The 
resolution also congratulates the World Intellectual Property 
Organization for its work in this regard.
    Legislative History.--On April 20, 2005, the Committee met 
in open session and ordered favorably reported the bill, 
without amendment, by voice vote. On April 26, 2005, the 
Committee reported the bill (H. Rept. 109-53). On April 28, 
2005, the House passed the bill, without amendment, by a roll 
call of 315-0.

H. Res. 420, directing the Attorney General to transmit to the House of 
        Representatives documents relating to the disclosure of the 
        identity and employment of Ms. Valerie Plame

    Summary.--Congressman Rush Holt introduced H. Res. 420 on 
July 29, 2005. The resolution sought to direct the Attorney 
General to transmit to the House of Representatives documents 
in his possession relating to the disclosure of the identity 
and employment of Ms. Valerie Plame.
    Legislative History.--H. Res. 420 was referred to the House 
Judiciary Committee on July 29, 2005. On September 14, 2005, 
the Judiciary Committee held a markup and ordered H. Res. 420 
reported adversely by a vote of 15-11. The Committee filed H. 
Rept. 109-230 on September 22, 2005, and the resolution was 
placed on the House Calendar.

H. Res. 423, Honoring and recognizing the distinguished service, 
        career, and achievements of Chief Justice William Hubbs 
        Rehnquist upon his death, and for other purposes

    Summary.--Introduced by Representative F. James 
Sensenbrenner, Jr., H. Res. 423 honors and recognizes the 
distinguished service, career, and achievements of Chief 
Justice William Hubbs Rehnquist upon his death, and for other 
purposes.
    Legislative History.--Introduced on September 6, 2005, H. 
Res. 423 was considered by the House on September 7, 2005, 
pursuant to a previous order. H. Res. 423 was agreed to without 
amendment by voice vote.

H. Res. 547--Expressing the sense of the House of Representatives that 
        the United States Court of Appeals for the Ninth Circuit 
        deplorably infringed on parental rights in Fields v. Palmdale 
        School District

    Summary.--H. Res. 547 provides ``[t]hat it is the sense of 
the House of Representatives that--(1) the fundamental right of 
parents to direct the education of their children is firmly 
grounded in the Nation's Constitution and traditions; (2) the 
Ninth Circuit's ruling in Fields v. Palmdale School District 
undermines the fundamental right of parents to direct the 
upbringing of their children; and (3) the United States Court 
of Appeals for the Ninth Circuit should agree to rehear the 
case en banc in order to reverse this constitutionally infirm 
ruling.''
    Legislative History.--H. Res. 547 was introduced by Rep. 
Tim Murphy on November 10, 2005. On November 16, 2005, H. Res. 
547 was considered under suspension of the rules, passing the 
House by a vote of 320 to 91.

H. Res. 655--Honoring the life and accomplishments of Coretta Scott 
        King and her contributions as a leader in the struggle for 
        civil rights and expressing condolences to the King Family

    Summary.--H. Res. 655 honors the life and accomplishments 
of Coretta Scott King and her contributions as a leader in the 
struggle for civil rights and expresses condolences to the King 
Family. Mrs. Coretta Scott King was the wife of the late 
Reverend Dr. Martin Luther King, Jr. who became one of our 
country's most visible members of the civil rights movement, 
carrying on her husband's legacy after his death. Mrs. Coretta 
Scott King led the campaign to recognize her late husband's 
birthday as a national holiday and established the Martin 
Luther King, Jr. Center for Non-Violent Social Change, the 
first institution established in the memory of an African 
American and which houses our country's largest archive of 
documents from the Civil Rights Movement.
    Legislative History.--H. Res. 655 was introduced as a 
privileged resolution on January 31, 2006, by Chairman 
Sensenbrenner. The resolution was agreed to by the House by 
voice vote on February 1, 2006.

H. Res. 724, Honoring Leonidas Ralph Mecham, Director of the 
        Administrative Office of the United States Courts and Secretary 
        of the Judicial Conference of the United States

    Summary.--H. Res. 724 recognizes Mr. Mecham for his more 
than 20 years of outstanding public service to the Federal 
judiciary and to the nation on the occasion of his retirement.
    Legislative History.--On March 15, 2006, the Committee met 
in open session and ordered the bill favorably reported, 
without amendment, by voice vote. On April 27, 2006, the 
Committee reported the bill (H. Rept. 109-446).

H. Con. Res. 208--Recognizing the 50th Anniversary of Rosa Louis Parks' 
        refusal to give up her seat on the bus and the subsequent 
        desegregation of American Society

    Summary.--H. Con. Res. 208 recognizes the 50th Anniversary 
of Rosa Louise Parks' refusal to give up her seat on the bus 
and the subsequent desegregation of American Society. Fifty 
years ago, through one courageous act, Rosa Parks inspired the 
citizens of Montgomery, Alabama to stand up to the injustice 
that had become commonplace among citizens. Her single act led 
to the 381-day Montgomery Bus Boycott and eventually to the 
desegregation of Montgomery, Alabama. Her actions sparked the 
national civil rights movement that helped lead to the equal 
treatment of all citizens.
    Legislative History.--H. Con. Res. 208 was introduced by 
House Judiciary Committee Ranking Member John Conyers on July 
13, 2005. It was reported out of the House Judiciary Committee 
by voice vote on July 27, 2005. A motion to suspend the rules 
was agreed to and the resolution was passed by the House by 
voice vote on September 14, 2005. The resolution was agreed to 
in the Senate without amendment and with a preamble by 
unanimous consent on November 18, 2005.

H. Con. Res. 245--Expressing the sense of Congress that the United 
        States Supreme Court should speedily find the use of the Pledge 
        of Allegiance in schools to be consistent with the Constitution 
        of the United States

    Summary.--H. Con. Res. 245 provides that ``it is the sense 
of Congress that--(1) judicial rulings by the United States 
Court of Appeals for the 4th and 9th circuits have split on the 
issue of whether the Constitution allows the recitation of the 
Pledge of Allegiance in schools; (2) the ruling by the United 
States Court of Appeals for the 4th circuit correctly finds the 
Constitution does allow such a recitation; and (3) the United 
States Supreme Court should at the earliest opportunity resolve 
this conflict among the circuits in a manner which recognizes 
the importance and Constitutional propriety of the recitation 
of the Pledge of Allegiance by school children.'' This 
resolution responded to the Eastern District of California's 
holding that school district policies of voluntary, teacher-led 
recitations of the Pledge violate the Establishment Clause.
    Legislative History.--H. Con. Res. 245 was introduced by 
Rep. Darrell Issa on September 15, 2005. On September 28, 2005, 
H. Con. Res. 245 was considered under suspension of the rules, 
and passed the House by a vote of 383 to 31 on September 29, 
2005.

H. Con. Res. 367--Honoring and praising the National Society of the 
        Sons of the American Revolution on the 100th anniversary of 
        being granted its Congressional Charter

    Summary.--H. Con. Res. 367 provides ``[t]hat the Congress--
(1) recognizes the 100th anniversary of the historic 
Congressional Charter of the National Society of the Sons of 
the American Revolution; and (2) honors and praises the 
National Society of the Sons of the American Revolution on the 
occasion of its anniversary for its work to perpetuate and 
honor the memory of the brave men who fought to gain our 
freedom during the Revolutionary War and for the Society's 
unfailing devotion to our Nation's youth.''
    Legislative History.--H. Con. Res. 367 was introduced by 
Rep. Howard Coble on March 29, 2006. On June 20, 2006, H. Con. 
Res. 367 was considered under suspension of the rules, and 
passed the House by a voice vote. On June 26, 2006, H. Con. 
Res. 367 passed the Senate by unanimous consent.
    SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY

  LAMAR S. SMITH, Texas, Chairman

HOWARD BERMAN, California            HENRY J. HYDE, Illinois
JOHN CONYERS, California             ELTON GALLEGLY, California
RICK BOUCHER, Virginia               BOB GOODLATTE, Virginia
ZOE LOFGREN, California              WILLIAM L. JENKINS, Tennessee
MAXINE WATERS, California            SPENCER BACHUS, Alabama
MARTIN T. MEEHAN, Massachusetts      BOB INGLIS, South Carolina
ROBERT WEXLER, Florida               RIC KELLER, Florida
ANTHONY D. WIENER, New York          DARRELL E. ISSA, California
ADAM B. SCHIFF, California           CHRIS CANNON, Utah
LINDA T. SANCHEZ, California         MIKE PENCE, Indiana
                                     J. RANDY FORBES, Virginia

          Tabulation of subcommittee legislation and activity

Public:
    Legislation referred to the Subcommittee.....................   101
    Legislation on which hearings were held......................     9
    Legislation reported favorably to the full Committee.........    15
    Legislation reported adversely to the full Committee.........     0
    Legislation reported without recommendation to the full 
      Committee..................................................     0
    Legislation reported as original measure to the full 
      Committee..................................................     0
    Legislation discharged from the Subcommittee.................     3
    Legislation pending before the full Committee................     3
    Legislation reported to the House............................    10
    Legislation discharged from the Committee....................     0
    Legislation pending in the House.............................     3
    Legislation passed by the House..............................     9
    Legislation pending in the Senate............................     5
    Legislation vetoed by the President (not overridden).........     0
    Legislation enacted into Public Law..........................     3
    Legislation enacted into Public Law as part of other 
      legislation................................................     1
    Days of legislative hearings.................................     9
    Days of oversight hearings...................................    20

                    Jurisdiction of the Subcommittee

    The Subcommittee on Courts, the Internet, and Intellectual 
Property has jurisdiction over the following subject matters: 
copyright, patent and trademark law, information technology, 
administration of U.S. courts, Federal Rules of Evidence and 
Appellate Procedure, judicial ethics, other appropriate matters 
as referred by the Chairman, and relevant oversight.

                         Legislative Activities


                                 COURTS

H.R. 211, the Ninth Circuit Judgeship and Reorganization Act of 2005

    Summary.--Introduced by Representative Michael K. Simpson, 
H.R. 211 authorizes the appointment of additional Federal 
circuit judges and reorganizes the Ninth Judicial Circuit into 
a ``new'' Ninth Circuit (California, Guam, Hawaii, and the 
Northern Mariana Islands), the Twelfth Circuit (Arizona, 
Nevada, Idaho, and Montana), and Thirteenth Circuit (Alaska, 
Oregon, and Washington State).
    Legislative History.--Introduced on January 4, 2005, H.R. 
211 was referred to the Subcommittee on March 2, 2005. No 
action was taken on H.R. 211. A related measure, H.R. 4093, the 
``Federal Judgeship and Administrative Efficiency Act of 
2005,'' was subsequently introduced. See H.R. 4093 for further 
action.

H.R. 212, the Ninth Circuit Court of Appeals Judgeship and 
        Reorganization Act of 2005

    Summary.--Introduced by Representative Michael K. Simpson, 
H.R. 212 authorizes the appointment of additional Federal 
circuit judges and reorganizes the Ninth Judicial Circuit into 
a ``new'' Ninth Circuit (Arizona, California, and Nevada) and 
Twelfth Circuit (Alaska, Guam, Hawaii, Idaho, Montana, Northern 
Mariana Islands, Oregon, and Washington).
    Legislative History.--Introduced on January 4, 2005, H.R. 
212 was referred to the Subcommittee on March 2, 2005. No 
action was taken on H.R. 212. A related measure, H.R. 4093, the 
``Federal Judgeship and Administrative Efficiency Act of 
2005,'' was subsequently introduced. See H.R. 4093 for further 
action.

H.R. 232, to authorize an additional district judgeship for the 
        district of Nebraska

    Summary.--Introduced by Representative Lee Terry, H.R. 232 
would authorize one new permanent U.S. judgeship for the 
district of Nebraska.
    Legislative History.--Introduced on January 4, 2005, H.R. 
232 was referred to the Subcommittee on March 2, 2005. No 
action was taken on H.R. 232, although its contents were 
included in H.R. 4093, the ``Federal Judgeship and 
Administrative Efficiency Act of 2005.'' See H.R. 4093 for 
further action.

H.R. 435, the Equal Access to Justice Reform Act of 2005

    Summary.--Introduced by Representative Donald A. Manzullo, 
H.R. 435 amends the Equal Access to Justice Act (EAJA) by 
eliminating the ``substantial justification'' defense and 
strengthening the ability of prevailing parties in civil 
litigation with agencies of the Federal government to recoup 
their attorney's fees.
    Legislative History.--Introduced on February 1, 2005, H.R. 
435 was referred to the Committee on the Judiciary, and in 
addition to the Committee on Small Business, for a period to be 
subsequently determined by the Speaker, in each case for 
consideration of such provisions as fall within the 
jurisdiction of the committee concerned. The bill was referred 
to the Subcommittee on March 2, 2005. The Subcommittee 
conducted a legislative hearing, pursuant to notice, on the 
``Equal Access to Justice Reform Act of 2005,'' on May 23, 
2006. The following witnesses appeared and submitted statements 
for the record: Ryan W. Bounds, Chief of Staff, Office of Legal 
Policy, U.S. Department of Justice; Michael P. Farris, J.D., 
Chairman and General Counsel, Home School Legal Defense 
Association (HSLDA); Jonathan Hiatt, General Counsel, American 
Federation of Labor-Congress of Industrial Organizations (AFL-
CIO); and James M. Knott, Sr., President and Chairman of the 
Board, Riverdale Mills Corporation. No further action was taken 
on H.R. 435.

H.R. 1038, the Multidistrict Litigation Restoration Act of 2005

    Summary.--Introduced by Representative F. James 
Sensenbrenner, Jr., H.R. 1038 would allow a designated U.S. 
district court (a so-called ``transferee'' court) under the 
multidistrict litigation statute (28 U.S.C. Sec. 1407) to 
retain jurisdiction over referred cases arising from the same 
fact scenario for purposes of determining liability and 
punitive damages, or to send them back to the respective courts 
from which they were transferred. It also would function as a 
technical fix to a ``disaster'' litigation statute enacted 
during the 107th Congress.
    Legislative History.--On March 3, 2005, the Subcommittee 
met in open session and forwarded the bill to full Committee, 
without amendment, by voice vote. On March 9, 2005, the 
Committee ordered the bill favorably reported, without 
amendment, by voice vote. Eight days later the Committee 
reported the bill (H. Rept. 109-24). On April 19, 2005, the 
House passed the bill, without amendment, by voice vote. The 
following day the bill was received in the Senate, read twice, 
and referred to the Senate Committee on the Judiciary.

H.R. 1178, to create four new permanent judgeships for the eastern 
        district of California

    Summary.--Introduced by Representative William M. Thomas, 
H.R. 1178 would authorize four new permanent U.S. judgeships 
for the eastern district of California.
    Legislative History.--Introduced on March 8, 2005, H.R. 
1178 was referred to the Subcommittee on May 10, 2005. No 
action was taken on H.R. 1178, although its contents were 
included in H.R. 4093, the ``Federal Judgeship and 
Administrative Efficiency Act of 2005.'' See H.R. 4093 for 
further action.

H.R. 1229, the Federal Consent Decree Fairness Act

    Summary.--Introduced by Representative Roy Blunt, H.R. 1229 
would amend the Federal judicial code to limit the duration of 
Federal consent decrees to which State and local governments 
are a party, and for other purposes.
    Legislative History.--Introduced on March 10, 2005, H.R. 
1229 was referred to the Committee on the Judiciary. On May 10, 
2005, the ``Federal Consent Decree Fairness Act'' was referred 
to the Subcommittee, which conducted a legislative hearing, 
pursuant to notice, on June 21, 2005. The following witnesses 
appeared and submitted statements for the record: 
Representative Roy Blunt, Majority Whip, U.S. House of 
Representatives; the Honorable Nathaniel R. Jones, Blank Rome 
LLP; The Honorable David Goetz, Commissioner, Department of 
Finance and Administration, State of Tennessee; and David 
Schoenbrod, Professor, New York Law School. No further action 
was taken on H.R. 1229.

H.R. 1458, to require any Federal or State court to recognize any 
        notarization made by a notary public licensed by a State other 
        than the State where the court is located when such 
        notarization occurs in or affects interstate commerce

    Summary.--Introduced by Representative Robert B. Aderholt, 
H.R. 1458 proposed to require any Federal or State court to 
recognize any notarization made by a notary public licensed by 
a State other than the State where the court is located when 
such notarization occurs in or affects interstate commerce.
    Legislative History.--Introduced on April 5, 2005, H.R. 
1458 was referred to the Committee on the Judiciary. On May 10, 
2005, the measure was referred to the Subcommittee, which 
conducted a legislative hearing, pursuant to notice, on March 
9, 2006. The following witnesses appeared and submitted 
statements for the record: Timothy S. Reiniger, Esq., Executive 
Director, National Notary Association; Malcolm L. Morris, Esq., 
Professor and Associate Dean, College of Law, Northern Illinois 
University; Dean M. Googasian, Esq., The Googasian Firm, P.C. ; 
and Michael Frank Turner, Owner, Freedom Court Reporting, Inc. 
On May 24, 2006, the Subcommittee met in open session and 
ordered favorably reported H.R. 1458, with an amendment, by 
voice vote.

H.R. 2422, to allow media coverage of court proceedings

    Summary.--Introduced by Representative Steve Chabot, H.R. 
2422 would authorize the presiding judge of a U.S. appellate 
court or U.S. district court to permit the photographing, 
electronic recording, broadcasting, or televising to the public 
of court proceedings over which that judge presides.
    Legislative History.--Introduced on May 18, 2005, H.R. 2422 
was referred to the Subcommittee on July 1, 2005. The text of 
the bill was incorporated in section 22 of H.R. 1751, the 
``Secure Access to Justice and Court Protection Act of 2005,'' 
which the House passed with amendment by a roll call of 375-45 
on November 9, 2005. The following day H.R. 1751 was read twice 
and referred to the Senate Committee on the Judiciary.

H.R. 2955, the Intellectual Property Jurisdiction Clarification Act of 
        2006

    Summary.--Introduced by Representative Lamar S. Smith, H.R. 
2955 amends the Federal judicial code to clarify that the Court 
of Appeals for the Federal Circuit has exclusive jurisdiction 
of appeals relating to patents and plant variety protection, 
and for other purposes.
    Legislative History.--Introduced on June 16, 2005, H.R. 
2955 was referred to the Committee on the Judiciary. On June 
27, 2005, the measure was referred to the Subcommittee, which 
met in open session on June 28, 2005, and ordered H.R. 2955 
favorably reported, without amendment, by voice vote. On March 
2, 2006, the Committee met in open session and ordered 
favorably reported H.R. 2955, with an amendment, by voice vote. 
The Committee reported the bill on April 5, 2006 (H. Rept. 109-
407).

H.R. 3125, the Ninth Circuit Court of Appeals Judgeship and 
        Reorganization Act of 2005

    Summary.--Introduced by Representative Michael K. Simpson, 
H.R. 3125 authorizes the appointment of additional Federal 
circuit judges and reorganizes the Ninth Judicial Circuit into 
the ``new'' Ninth Circuit (California, Guam, Hawaii, and 
Northern Mariana Islands) and Twelfth Circuit (Alaska, Arizona, 
Idaho, Montana, Nevada, Oregon, and Washington).
    Legislative History.--Introduced on June 29, 2005, H.R. 
3125 was referred to the Committee on the Judiciary. On August 
23, 2005, the bill was referred to the Subcommittee. No action 
was taken on the bill. A related measure, H.R. 4093, the 
``Federal Judgeship and Administrative Efficiency Act of 
2005,'' was subsequently introduced. See H.R. 4093 for further 
action.

H.R. 3650, the Federal Judiciary Emergency Special Sessions Act of 2005

    Summary.--Introduced by Representative F. James 
Sensenbrenner, Jr., H.R. 3650 authorizes United States courts 
to conduct business outside of their respective geographic 
domains during emergency conditions, and for other purposes.
    Legislative History.--Introduced on September 6, 2005, H.R. 
3650 was referred to the Committee on the Judiciary. On 
September 7, 2005, the House passed H.R. 3650 without amendment 
by a roll call vote of 409-0. The Senate received and passed 
H.R. 3650 without amendment by unanimous consent on September 
8, 2005. H.R. 3650 was signed by the President on September 9, 
2005, and became Pub. L. No. 109-63.

H.R. 3729, the Federal Judiciary Emergency Tolling Act of 2006

    Summary.--Introduced by Representative F. James 
Sensenbrenner, Jr., H.R. 3729 empowers the chief judge of a 
Federal judicial district or circuit to delay or toll time 
deadlines for any class of cases pending or thereafter filed in 
a district, circuit, or bankruptcy court in the wake of a 
natural disaster or other emergency situation.
    Legislative History.--On November 9, 2005, the Committee 
met in open session and ordered the bill favorably reported, 
with amendment, by voice vote. On February 8, 2006, the 
Committee reported the bill as amended favorably (H. Rept. 109-
371). On July 17, 2006, the House passed the bill, as amended, 
by a roll call of 363-0. The following day the bill was 
received in the Senate, read twice, and referred to the Senate 
Committee on the Judiciary.

H.R. 3953, to authorize four permanent and one temporary additional 
        judgeships for the middle district of Florida, and three 
        additional permanent judgeships for the southern district of 
        Florida

    Summary.--Introduced by Representative Katherine Harris, 
H.R. 3953 would authorize four permanent judgeships and one 
temporary additional judgeship for the Middle District of 
Florida, and three additional permanent judgeships for the 
Southern District of Florida.
    Legislative History.--Introduced on September 29, 2005, 
H.R. 3953 was referred to the Subcommittee on October 17, 2005. 
No action was taken on H.R. 3953, although its contents were 
included in H.R. 4093, the ``Federal Judgeship and 
Administrative Efficiency Act of 2005.'' See H.R. 4093 for 
further action.

H.R. 4093, the Federal Judgeship and Administrative Efficiency Act of 
        2005

    Summary.--Introduced by Representative F. James 
Sensenbrenner, Jr., H.R. 4093 provides for the appointment of 
additional Federal circuit and district judges and reconfigures 
the Ninth Circuit Court of Appeals.
    Legislative History.--On October 24, 2005, H.R. 4093 was 
referred to the Subcommittee, which discharged the measure on 
October 27, 2005. On October 27, 2005, the Committee on the 
Judiciary met in open session and ordered favorably reported 
H.R. 4093, with an amendment, by a roll call vote of 22-12. The 
Committee reported the bill on February 8, 2006 (H. Rept. 109-
373). The text of H.R. 4093 was incorporated in title V, 
subtitles B, C, and D (sections 5202-5212) of H.R. 4241, the 
``Deficit Reduction Act of 2005.'' On November 18, 2005, the 
House passed H.R. 4241, as amended, by a roll call of 217-215.

H.R. 4311, to amend section 105(b)(3) of the Ethics in Government Act 
        of 1978 (5 U.S.C. App)

    Summary.--H.R. 4311 would make permanent a provision that 
allows Federal judges to redact, under prescribed conditions, 
sensitive information from their annual financial disclosure 
reports
    Legislative History.--On November 14, 2005, the bill was 
referred to the Committee on the Judiciary. On December 7, 
2005, under suspension of the rules, the House passed the bill, 
with amendment, by voice vote. Five days later the bill was 
received in the Senate. On January 27, 2006, the bill was read 
twice and referred to the Senate Committee on Homeland Security 
and Governmental Affairs, which discharged H.R. 4311 by 
unanimous consent on June 7, 2006. On the same day the bill was 
laid before the Senate by unanimous consent and was passed by 
the Senate, with amendment, by unanimous consent. On June 8, 
2006, a message on Senate action was sent to the House. In 
addition, the text of H.R. 4311 was incorporated in section 16 
of H.R. 1751, the ``Secure Access to Justice and Court 
Protection Act of 2005,'' which the House passed with amendment 
on November 9, 2005, by a roll call of 375-45. On November 10, 
2005, H.R. 1751 was received in the Senate, read twice, and 
referred to the Senate Committee on the Judiciary. See also S. 
1558, below, for related developments.

H.R. 4496, to amend title 28, United States Code, to provide for 
        certain transportation and subsistence in cases where district 
        courts are holding special sessions as a result of emergency 
        conditions

    Summary.--Introduced by Representative F. James 
Sensenbrenner, Jr., H.R. 4496 amends the Federal Judiciary 
Emergency Special Sessions Act of 2005 to require a district 
court holding special sessions due to emergency conditions to 
provide for certain prisoner transportation and subsistence 
allowances.
    Legislative History.--Introduced on December 8, 2005, H.R. 
4496 was referred to the Subcommittee on February 16, 2006. Its 
text was included in section 1198 of H.R. 3402, the Department 
of Justice Authorization of Appropriations Act, 2006-2009 (H. 
Rept 109-233), which the House passed, with amendment, by a 
roll call of 415-4 on September 28, 2005. On December 16, 2005, 
the Senate passed the bill with an amendment by unanimous 
consent. The following day, on motion offered by Representative 
F. James Sensenbrenner, Jr., the House agreed to the Senate 
amendment by voice vote. The President signed the bill on 
January 5, 2006. It is Pub. L. 109-162.

H.R. 5418, to establish a pilot program in certain United States 
        district courts to encourage enhancement of expertise in patent 
        cases among district judges

    Summary.--Introduced by Representative Darrell E. Issa, 
H.R. 5418 authorizes the establishment of a pilot program in 
certain United States district courts to encourage enhancement 
of expertise in patent cases among district judges.
    Legislative History.--H.R. 5418 was introduced on May 18, 
2006, and was referred to the Subcommittee on June 5, 2006. On 
July 27, 2006, the Subcommittee met in open session and ordered 
favorably reported H.R. 5418, without amendment, by voice vote. 
The full committee considered H.R. 5418 on September 13, 2006, 
and ordered the bill favorably reported, with an amendment, by 
voice vote. The bill then passed the House under suspension of 
the rules and referred to the Senate Judiciary.

H.R. 5440, the Federal Courts Jurisdiction Clarification Act of 2006

    Summary.--Introduced by Representative Lamar S. Smith, H.R. 
5440 amends the Federal judicial code with respect to 
jurisdictional rules and the amount in controversy in civil 
litigation concerning: (1) denial of district court original 
jurisdiction of an action between a citizen of a state and a 
resident alien domiciled in the same state; (2) citizenship 
rules for corporations and insurance companies with foreign 
contacts; (3) removal procedures for civil and criminal actions 
and summary remand; (4) indexing the amount in controversy; and 
(5) the use of declarations to specify damages.
    Legislative History.--H.R. 5440 was introduced on May 22, 
2006, and was referred to the Subcommittee on May 23, 2006. On 
May 24, 2006, the Subcommittee met in open session and ordered 
favorably reported H.R. 5440, without amendment, by voice vote.

H. Res. 357, Honoring Justice Sandra Day O'Connor

    Summary.--Introduced by Representative Ginny Brown-Waite, 
H. Res. 357 acknowledges and honors Justice Sandra Day O'Connor 
on the occasion of her retirement from the U.S. Supreme Court.
    Legislative History.--Introduced on July 12, 2005, H. Res. 
357 was referred to the Subcommittee on August 23, 2005. On 
March 1, 2006, the House passed H. Res. 357, under suspension 
of the rules, without amendment by a roll call vote of 410-0.

S. 1558, to amend the Ethics in Government Act of 1978 to protect 
        family members of filers from disclosing sensitive information 
        in a public filing and to extend for four years the authority 
        to redact financial disclosure statements of judicial employees 
        and judicial officers

    Summary.--Introduced by Senator Susan M. Collins, S. 1558 
would amend the ``Ethics in Government Act of 1978'' to protect 
family members of filers from disclosing sensitive information 
in a public filing and to extend for four years the authority 
to redact financial disclosure statements of judicial employees 
and judicial officers.
    Legislative History.--Introduced in the Senate on July 29, 
2005, S. 1558 was referred to the Senate Committee on Homeland 
Security and Governmental Affairs, which discharged the measure 
on November 10, 2005. On November 10, 2005, the Senate adopted 
two amendments to S. 1558, which provided a complete substitute 
and amended the title of the bill. The Senate then passed S. 
1558, as amended, by unanimous consent. On November 14, 2005, 
S. 1558 was referred to the Committee on the Judiciary. On 
February 6, 2006, S. 1558 was referred to the Subcommittee. See 
also H.R. 4311 for related developments.

H. Res. 916, Impeaching Manuel L. Real, judge of the United States 
        District Court for the District of California, for high crimes 
        and misdemeanors

    Summary.--Introduced by Representative F. James 
Sensenbrenner, Jr., H. Res. 916 resolves to impeach Manuel L. 
Real, judge of the United States District Court for the Central 
District of California, for high crimes and misdemeanors.
    Legislative History.--On September 21, 2006, the 
Subcommittee met in open session and held a legislative hearing 
on H. Res. 916.

                         INTELLECTUAL PROPERTY

Copyrights

H.R. 1036, the ``Copyright Royalty Judges Program Technical Corrections 
        Act''

    Summary.--Introduced by Representative Lamar Smith, H.R. 
1036 makes stylistic, typographical, and clarifying changes to 
the ``Copyright Royalty and Distribution Reform Act of 2004'' 
(Pub. L. 108-419), which overhauled the administrative 
construct by which copyright royalties are determined and 
distributed pursuant to various compulsory licenses under the 
Copyright Act.
    Legislative History.--On March 2, 2005, H.R. 1036 was 
referred to the Subcommittee. The next day the Subcommittee met 
in open session ordered the bill favorably reported, without 
amendment, by voice vote. On March 9, 2005, the Committee met 
in open session and ordered the bill favorably reported, 
without amendment, by voice vote. On April 28, 2005, the 
Committee reported the bill (H. Rept. 109-64). On November 16, 
2005, the House passed the bill, with an amendment, by voice 
vote. On June 29, 2006, the Senate Committee on the Judiciary 
met in open session and conducted a markup of the bill. On July 
13, 2006, the Senate Judiciary Committee ordered the bill 
favorably reported, with an amendment, by voice vote. The bill 
was reported without written report. On July 19, 2006, the 
Senate passed the bill with an amendment by unanimous consent. 
On September 25, 2006, the House passed the same bill. On 
October 6, 2006, H.R. 1036 was signed into law (Pub. L. 109-
303).

H.R. 1037, to make technical corrections to title 17, United States 
        Code

    Summary.--Introduced by Representative Lamar Smith, H.R. 
1037 makes stylistic, typographical, and clarifying changes to 
the ``Satellite Home Viewer Extension and Reauthorization Act 
of 2004'' (Pub. L. 109-447, title IX), which extended the 
compulsory license that allows satellite carriers to transmit 
copyrighted programming to their customers for another five 
years.
    Legislative History.--On March 3, 2005, the Subcommittee 
met in open session ordered the bill favorably reported, 
without amendment, by voice vote. On March 9, 2005, the 
Committee met in open session and ordered the bill favorably 
reported, without amendment, by voice vote. On May 10, 2005, 
the Committee reported the bill (H. Rept. 109-75).

H.R. 5055, to amend title 17, United States Code, to provide protection 
        for fashion design

    Summary.--Introduced by Representative Bob Goodlatte, H.R. 
5055 extends copyright protection to fashion designs, but 
excludes from such protection fashion designs that are embodied 
in a useful article that was made public by the designer or 
owner more than three months before the registration of 
copyright application.
    Legislative History.--On July 27, 2006, the Subcommittee 
met in open session and held a legislative hearing on H.R. 
5055. The following witnesses appeared and submitted a written 
statement for the record: Jeffrey Banks, fashion designer, on 
behalf of the Council of Fashion Designers of America; David 
Wolfe, Creative Director, The Doneger Group; Susan Scafidi, 
Visiting Professor, Fordham Law School and Associate Professor, 
Southern Methodist University; and Christopher Sprigman, 
Associate Professor, University of Virginia School of Law.

H.R. 5439, the Orphan Works Act of 2006

    Summary.--Introduced by Representative Lamar Smith, H.R. 
5439 limits the remedies available in a copyright infringement 
action for unlocatable copyright owners under prescribed 
conditions. The legislation also requires the Register of 
Copyrights to conduct an inquiry with respect to remedies for 
copyright infringement claims seeking limited monetary relief, 
including consideration of alternatives to disputes currently 
heard in the U.S. district courts.
    Legislative History.--The Subcommittee held an oversight 
hearing on the issues raised by the legislation on March 8, 
2006. On May 24, 2006, the Subcommittee met in open session and 
ordered favorably reported H.R. 5439, without an amendment, by 
voice vote.

H.R. 5553, the Section 115 Reform Act of 2006

    Summary.--Introduced by Representative Lamar Smith, H.R. 
5553 updates Section 115 of the Copyright Act by setting forth 
new provisions governing compulsory licenses for digital 
phonorecord deliveries and hybrid offerings. The legislation is 
designed to modernize the licensing system for digital music 
services while ensuring that royalties currently being held in 
escrow are paid to songwriters. The legislation also requires 
the Register of Copyrights to designate a General Designated 
Agent to grant and administer licenses and collect and 
distribute royalties payable for the use of musical works 
licensed under this Act.
    Legislative History.--On June 8, 2006, the Subcommittee met 
in open session and ordered favorably reported H.R. 5553, 
without amendment, by a voice vote.

H.R. 5593, the Royalty Distribution Clarification Act of 2006

    Summary.--Introduced by Representative Lamar Smith, H.R. 
5593 modifies existing law by allowing Copyright Royalty 
Judges, upon the motion of a claimant and after publication of 
a request for responses, to make a partial distribution of 
cable and satellite royalty fees at any time after the filing 
of claims for distribution if no eligible claimant has stated a 
reasonable objection.
    Legislative History.--The legislation was introduced on 
June 13, 2006. No hearings were held on the bill, but the 
Senate Committee on the Judiciary included its text as an 
amendment to H.R. 1036 during a July 13, 2006, markup. See H.R. 
1036 for further action.

S. 167, the Family Entertainment and Copyright Act of 2005

    Summary.--Introduced by Senator Hatch, S. 167 contains four 
titles. Title I is the Artists' Rights and Theft Prevention Act 
of 2005. The Act amends the Federal criminal code to prohibit 
the use or attempted use of a video camera to make a copy of a 
motion picture or other copyrighted audiovisual work from a 
performance of such work in a movie theater and sets forth 
penalties for such violations. The Act also establishes 
criminal penalties for willful copyright infringement by the 
distribution of a computer program, musical work, motion 
picture or other audiovisual work, or sound recording being 
prepared for commercial distribution by making it available on 
a computer network accessible to members of the public.
    Title II is the Family Movie Act of 2005. The Act creates 
an exemption from copyright infringement for the creation or 
use of certain technology to skip over content in authorized 
copies of motion pictures. The legislation also amends the 
Trademark Act of 1946 to protect from liability for trademark 
infringement persons who engage in such acts and manufacturers 
of such technology.
    Title III is the National Film Preservation Act of 2005 and 
the National Film Preservation Foundation Reauthorization Act 
of 2005. The National Film Preservation Act amends the National 
Film Preservation Act of 1996 to expand the use of the National 
Film Registry seal and directs the Librarian of Congress, in 
consultation with the National Film Registry Board, to expand 
film preservation efforts. The National Film Preservation 
Foundation Act modifies the structure of the National Film 
Preservation Foundation.
    Title IV is the Preservation of Orphan Works Act. The Act 
expands the use of copyrighted works by libraries or archives 
during the last 20 years of any term of copyright of a 
published work.
    Legislative History.--Introduced by Senator Orrin Hatch on 
January 25, 2005, S. 167 was passed by the Senate on February 
1, 2005. On March 3, 2005, the Subcommittee met in open session 
and ordered the bill favorably reported, without amendment, by 
a voice vote. On March 9, 2005, the full Committee met in open 
session and ordered the bill favorably reported, without 
amendment, by voice vote. The joint referral to the House 
Administration Committee was discharged on April 12, 2005. On 
April 19, 2005, the bill was passed by the full House without 
amendment by a voice vote. On April 27, 2005, the legislation 
was signed into law as Pub. L. 109-9.

S. 1785, the Vessel Hull Design Protection Amendments of 2005

    Summary.--Introduced by Senator John Cornyn, S. 1785 amends 
the ``Vessel Hull Design Protection Act'' by specifying that 
the design of both the vessel hull and deck are protected under 
chapter 13 of the U.S. Copyright Act. Current law only protects 
the design of the vessel hull, but not the deck.
    Legislative History.--On November 18, 2005, the Senate 
passed the bill without amendment by voice vote (H. Rept. 109-
33). On March 1, 2006, the Subcommittee met in open session and 
ordered favorably reported S. 1785 without amendment by a voice 
vote. On December 6, 2006, the House passed the bill with an 
amendment (including the text of H. Con Res. 319 and H.R. 5120) 
by voice vote.

Patents and Trademarks

H.R. 683, the Trademark Dilution Revision Act of 2005

    Summary.--Introduced by Representative Lamar Smith, H.R. 
683 establishes a likelihood-of-harm threshold in dilution 
cases and clarifies other definitions and provisions in the 
Federal Trademark Dilution Act.
    Legislative History.--On February 17, 2005, the 
Subcommittee held a legislative hearing on H.R. 683. The 
following witnesses appeared and submitted written statements 
for the record: Anne Gundelfinger, President and Chairperson of 
the Board, International Trademark Association (INTA); Mark A. 
Lemley, William H. Neukom Professor of Law, Stanford 
University; William G. Barber, Partner, Fulbright & Jaworski, 
LLP; and Marvin Johnson, Legislative Counsel, American Civil 
Liberties Union (ACLU). On March 3, 2005, the Subcommittee met 
in open session and ordered favorably reported H.R. 683, with 
an amendment, by voice vote. On March 9, 2005, the Committee 
met in open session and ordered favorably reported H.R. 683, as 
amended, by voice vote (H. Rept. 109-23). On April 19, 2005, 
the House passed H.R. 683, with an amendment, by a roll call of 
411-8. The following day H.R. 683 was received in the Senate, 
read twice, and referred to the Senate Committee on the 
Judiciary. On February 27, 2006, the Committee met in open 
session and ordered favorably reported H.R. 683, with an 
amendment and without written report, by voice vote. On March 
8, 2006, the Senate passed H.R. 683, with an amendment, by 
unanimous consent. On September 25, 2006, the House suspended 
the rules and agreed to the Senate amendment by voice vote. 
H.R. 683 became Pub. L. No. 109-312 on October 6, 2006.

H.R. 2791, the United States Patent and Trademark Fee Modernization Act 
        of 2005

    Summary.--Introduced by Representative F. James 
Sensenbrenner, Jr., H.R. 2791 makes permanent the ``new'' 
patent and trademark fee schedule enacted in the 108th 
Congress, provides certain protections for small business and 
individual patentees, and creates a refund mechanism to ensure 
that the U.S. Patent and Trademark Office remits unspent 
revenue in a given fiscal year to the inventors who fund the 
system.
    Legislative History.--On June 28, 2005, the Subcommittee 
met in open session and ordered favorably reported H.R. 2791, 
without amendment, by voice vote. On November 9, 2005, the 
Committee met in open session and ordered favorably reported 
H.R. 2791, without amendment, by voice vote. On February 8, 
2006, the Committee reported the bill (H. Rept. 109-372). No 
further action was taken on the (freestanding) bill; however, 
the text of H.R. 2791 that reauthorizes the fee schedule from 
the 108th Congress was incorporated in title II of H.R. 5672 
(H. Rept. 109-280), the Science, State, Justice, Commerce and 
Related Agencies Appropriations Act, 2007, which the House 
passed on June 29, 2006, with amendments, by a roll call of 
393-23. On July 13, 2006, the Senate Committee on 
Appropriations reported favorably the bill, with amendments, by 
voice vote (S. Rept. 109-280).

H.R. 2795, the Patent Reform Act of 2005

    Summary.--Introduced by Representative Lamar Smith, H.R. 
2795 makes several changes to the U.S. patent system. The major 
provisions include defining patent ownership based on the 
status of the inventor who files first (rather than who invents 
first); permitting the use of third-party prior-art submissions 
to assist in the evaluation of novelty and non-obviousness; the 
creation of a post-grant opposition system; greater expansion 
of the inter partes reexamination system; and revision of the 
inequitable conduct standard.
    Legislative History.--On June 9, 2005, the Subcommittee 
held a legislative hearing on H.R. 2795. The following 
witnesses appeared and submitted written statements for the 
record: Gary L. Griswold, President and Chief Intellectual 
Property Counsel, 3M Innovative Properties Company, on behalf 
of the American Intellectual Property Law Association (AIPLA); 
Carl Gulbrandsen, Managing Director, Wisconsin Alumni Research 
Foundation (WARF); Josh Lerner, Professor, Harvard Business 
School; and Daniel B. Ravicher, Executive Director, Public 
Patent Foundation (PUBPAT). No further action was taken on the 
bill.

H.R. 4742, to allow the Director of the Patent and Trademark Office to 
        waive statutory provisions governing patent and trademarks in 
        certain emergencies

    Summary.--Introduced by Representative Lamar Smith, H.R. 
4742 amends title 35 by waiving certain statutory requirements 
governing patents and trademarks (such as the filing of time-
sensitive maintenance fees) in emergency situations, including 
natural disasters and terrorist attacks.
    Legislative History.--On March 1, 2006 the Subcommittee met 
in open session and ordered favorably reported H.R. 4742, 
without amendment, by voice vote. On March 15, 2006, the 
Committee met in open session and ordered favorably reported 
H.R. 4742, unamended, by voice vote. The Committee reported the 
bill on April 5, 2006 (H. Rept. 109-408). On December 5, 2006, 
the House passed the bill without amendment by voice vote.

H.R. 5120, to amend title 35, United States Code, to conform certain 
        filing provisions within the Patent and Trademark Office

    Summary.--Introduced by Representative William L. Jenkins, 
H.R. 5120 authorizes the Patent and Trademark Office to accept 
term-extension applications that deviate from the filing 
requirements of section 156 of the Patent Act based on 
``unintentional delay.''
    Legislative History.--On September 14, 2006, pursuant to 
notice, the Subcommittee met in open session and conducted a 
legislative hearing on H.R. 5120. The following witnesses 
appeared and submitted statements for the record: the Honorable 
Jon W. Dudas, Under Secretary of Commerce for Intellectual 
Property and Director of the U.S. Patent and Trademark Office; 
Clive Meanwell Chief Executive Officer, The Medicines Company; 
Kathleen D. Jaeger, President and Chief Executive Officer, 
Generic Pharmaceutical Association (GphA); John R. Thomas, 
Professor of Law, Georgetown University Law Center. The text of 
H.R. 5120 was included as Sec. 202 of S. 1785, which the House 
passed by voice vote on December 6, 2006.

H.R. 5618, to extend the patent term for the badge of the American 
        Legion Women's Auxiliary, and for other purposes

    Summary.--Introduced by Representative Chris Cannon, H.R. 
5618 extends the (design) patent term for the badge of the 
American Legion Women's Auxiliary for 14 years.
    Legislative History.--The text of H.R. 5618 was included in 
section 1094 of S. 2766, the ``National Defense Authorization 
Act for Fiscal Year 2007,'' which the Senate passed with 
amendment by a roll call of 96-0 on June 22, 2006.

H.R. 5619, to extend the patent term for the badge of the American 
        Legion, and for other purposes

    Summary.--Introduced by Representative Chris Cannon, H.R. 
5619 extends the (design) patent term for the badge of the 
American Legion for 14 years.
    Legislative History.--The text of H.R. 5619 was included in 
section 1094 of S. 2766, the ``National Defense Authorization 
Act for Fiscal Year 2007,'' which the Senate passed with 
amendment by a roll call of 96-0 on June 22, 2006.

H.R. 5620, to extend the patent term for the badge of the Sons of the 
        American Legion, and for other purposes

    Summary.--Introduced by Representative Chris Cannon, H.R. 
5620 extends the (design) patent term for the badge of the Sons 
of the American Legion for 14 years.
    Legislative History.--The text of H.R. 5620 was included in 
section 1094 of S. 2766, the ``National Defense Authorization 
Act for Fiscal Year 2007,'' which the Senate passed with 
amendment by a roll call of 96-0 on June 22, 2006.

H. Con. Res. 53, Expressing the sense of Congress regarding the 
        issuance of the 500,000th design patent by the United States 
        Patent and Trademark Office

    Summary.--Introduced by Representative John Conyers, H. 
Con. Res. 53 acknowledges the DaimlerChrysler Corporation and 
its employees for receiving the 500,000th design patent issued 
by the Patent and Trademark Office for their work on the 
Chrysler ``Crossfire.''
    Legislative History.--On March 3, 2005, the Subcommittee 
met in open session and ordered favorably reported H. Con. Res. 
53, without amendment, by voice vote. On March 9, 2005, the 
Committee ordered favorably reported H. Con. Res. 53, without 
amendment, by voice vote. On March 17, 2005, the Committee 
reported the bill (H. Rept. 109-22). On April 19, 2005, the 
House passed H. Con. Res., without amendment, by voice vote. 
The following day the bill was received in the Senate and 
referred to the Senate Committee on the Judiciary.

H. Con. Res. 319, Expressing the sense of the Congress regarding the 
        successful and substantial contributions of the amendments to 
        the patent and trademark laws that were enacted in 1980 (Public 
        Law 96-517; commonly known as the ``Bayh-Dole Act''), on the 
        occasion of the 25th anniversary of its enactment

    Summary.--Introduced by Representative F. James 
Sensenbrenner, Jr., H. Con. Res. 319 reaffirms Congress' 
commitment to the policies and objectives of the Bayh-Dole Act 
on the 25th anniversary of its enactment.
    Legislative History.--On March 10, 2006, the Subcommittee 
discharged H. Con. Res. 319. On March 15, 2006, the Committee 
met in open session and ordered favorably reported H. Con. Res. 
319, without amendment, by voice vote. The Committee reported 
the bill on April 5, 2006 (H. Rept. 109-409). The text of H. 
Con. Res. 319 was included as Sec. 201 of S. 1785, which the 
House passed by voice vote on December 6, 2006.

                          Oversight Activities


Summary of the Committee's oversight plan and the Subcommittee's 
        responses thereto

    Pursuant to its obligations under Rule X of the House 
Rules, the Committee submitted the following subject matter as 
part of its oversight plan for the 109th Congress.

The Federal Judicial system

    The Subcommittee has oversight responsibility for four 
entities located within the Federal Judicial Branch: (1) the 
Judicial Conference of the United States; (2) the 
Administrative Office of the U.S. Courts; (3) the Federal 
Judicial Center; and (4) the State Justice Institute. The 
Subcommittee also has jurisdiction over the Federal Rules 
Enabling Act and the Advisory Committees on Civil Rules, 
Appellate Rules and Rules of Evidence.
    During Chairman Sensenbrenner's tenure, the Subcommittee 
has devoted much time and resources to enhancing judicial 
ethics and investigating instances of judicial misconduct. 
Pursuant to discussions with Chairman Sensenbrenner and former 
Chief Justice Rehnquist during the 108th Congress, Justice 
Breyer was appointed to head an ad hoc judicial commission to 
review the judicial misconduct and recusal statutes to 
determine whether they are serving the public interest. This 
commission developed its findings and reported them on 
September 19, 2006, which should lay the groundwork for further 
amendments to the Judicial Councils Reform and Judicial Conduct 
and Disability Act of 1980 (the ``1980 Act'') in the 110th 
Congress.
    The Subcommittee also conducted an impeachment 
investigation of U.S. District Judge Manuel L. Real of the 
Central District of California in the fall of 2006. The Ninth 
Circuit twice dismissed complaints filed against Judge Real 
under the 1980 Act for his conduct in a case he oversaw from 
2000-03.
    In addition, the Subcommittee's oversight plan noted an 
ongoing problem regarding the referral of patent appeals to 
State courts and the regional Federal circuits. Congress 
created the Federal Circuit in 1982 to unify patent law. This 
means that the Federal Circuit was always intended to hear 
patent appeals--not the individual circuit courts of appeals or 
the State courts. A 2002 Supreme Court decision (Holmes Group) 
has cast the role of the Federal Circuit in doubt. More 
specifically, the Court ruled that appeals from cases in which 
the patent claim appears in a pleading other than the complaint 
must go to the regional circuits. This has led to both the 
regional circuits accepting patent cases and some State courts 
hearing patent and copyright cases. The Subcommittee conducted 
hearings on March 17, 2005, in regards to the Holmes Group 
problem and reported legislation to fix it.

The U.S. copyright system

    The Subcommittee continued to devote considerable time to 
oversee the operation of the copyright system in a world of 
ever-changing technology. It is vital to the protection of our 
copyright industry that the Subcommittee be vigilant in its 
exercise of its jurisdiction to carry out its constitutional 
mandate to ``promote the progress of science and useful arts, 
by securing for limited times to authors and inventors the 
exclusive right to their respective writings and 
discoveries[.]'' (U.S. Const. art. I Sec. 8. cl. 8).
    The Subcommittee has oversight responsibilities over the 
operation of the U.S. Copyright Office, which is part of the 
Library of Congress. The Copyright Office has a number of 
responsibilities, from collecting and distributing copyright 
royalties to registering and granting certificates of 
copyrights to thousands of people each year. The Subcommittee 
conducted an oversight hearing on April 5, 2006, to address the 
changing needs and efficient operation of that office.
    Many of the Office's employees have been physically 
displaced due to renovations and re-engineering within the 
Madison Building. The Office also required additional 
appropriations to discharge its obligations under the new 
``CARP'' statute. Both issues were explored more fully during 
an oversight hearing in 2005.
    Much of the Subcommittee's copyright agenda pertains to the 
operations of the entertainment industries, including the music 
business. Performance rights organizations, or ``PROs,'' ensure 
that songwriters are paid when their works are publicly 
performed. The Society of European Stage Authors and Composers 
(SESAC) is the only performing rights organization that does 
not operate under a consent decree. Smaller than its 
competitors, Broadcast Music, Inc (BMI) and the American 
Society of Composers, Authors and Publishers (ASCAP), it is 
nonetheless growing. The Subcommittee followed-up on its 
oversight plan by reviewing operations of the PROs, with an 
emphasis on how SESAC treats its artists.
    Two themes that have dominated the Subcommittee's copyright 
oversight and legislative agenda are those efforts to (1) 
inhibit piracy of copyrighted works and (2) modernize the 
Copyright Act to facilitate greater digital reproduction and 
distribution of copyrighted works.
    Concerning piracy, defenders of peer-to-peer (P2P) systems 
and hardware/electronic companies argue that copyright holders 
are inhibiting a more robust roll-out of music/movie 
technologies that the public wants. While the Subcommittee has 
encouraged the development of such technologies, the great 
majority of its members believe it must be done in a manner 
that respects the property rights of affected content holders. 
During the 109th Congress, this point was explored more fully 
in oversight hearings that touched upon IP piracy in the 
People's Republic of China and Russia; P2P piracy on university 
campuses; and implementation of the ``broadcast flag.''
    Concerning the ``modernization'' of the Copyright Act, the 
Subcommittee devoted considerable resources to reviewing 
Section 115 of the Act. This is a torturously drafted and 
antiquated statute that allows, under prescribed conditions, 
the use of ``phonorecords'' that have already been distributed. 
It is in need of an update and the affected industry players 
are trying to develop consensus views on how to reform the law.
    In addition to its oversight hearings and staff-industry 
negotiation on a Section 115 reform bill, the Subcommittee took 
similar initiative to modernize the treatment of ``orphan 
works.'' These are copyrighted works whose authors/owners 
cannot be identified, thereby limiting public access to them. 
It is hoped that a bipartisan bill can be developed that will 
strike an appropriate balance between the rights of the 
affected property owners and the public interest in accessing 
these works.

The U.S. patent and trademark systems

    The U.S. Patent and Trademark Office (PTO) is part of the 
Department of Commerce and the Subcommittee has oversight 
responsibilities for its authorization and its operation. The 
PTO is responsible for the examination and issuance of U.S. 
Patents and Trademarks. It is also responsible for the 
international negotiations with other intellectual property 
authorities, such as the European Patent Office and the 
Japanese Patent Office.
    The Subcommittee held oversight hearings on the PTO during 
the 109th Congress, including review of a Government 
Accountability Office report on the agency's operations 
(special emphasis was placed on its progress in implementing a 
workable electronic communications system). Improving PTO 
efficiency is critical in terms of securing more revenue for 
the agency through the appropriators.
    The PTO became a completely fee-funded agency pursuant to 
the budget reconciliation act passed in 1990. Since 1992, 
however, more than $800 million in fee revenue has been 
diverted by congressional appropriators (with the support of 
both Republican and Democratic administrations) to other 
programs.
    In June 2002, former PTO Director Jim Rogan released a 
``Stategic Business Plan'' outlining his vision for 
transforming agency operations, with the intent of improving 
patent and trademark quality while reducing work backlogs. 
Representatives of the affected user groups subsequently worked 
with the agency to refine the plan further.
    A major component of the Plan included the enactment of a 
new fee schedule that would raise fees, on average, by more 
than 15%. As a follow-up to oversight review of diversion, the 
Subcommittee reported legislation, H.R. 2791, to implement the 
new fee schedule in tandem with language to eliminate the 
incentive to divert excess revenue to non-PTO programs.
    Finally, and commensurate with its review of copyright 
piracy, the Subcommittee also explored patent piracy during its 
oversight hearings on trade relations with the People's 
Republic of China and Russia.

List of oversight hearings

    Digital Music Licensing and Section 115 of the Copyright 
Act, March 8, 2005 (Serial No. 109-6).
    Holmes Group, the Federal Circuit, and the State of Patent 
Appeals, March 17, 2005 (Serial No. 109-7).
    Digital Music Inoperability and Availability, April 6, 2005 
(Serial No. 109-9).
    Committee Print Regarding Patent Quality Improvement (Part 
1), April 20, 2005 (Serial No. 109-11).
    Committee Print Regarding Patent Quality Improvement (Part 
2), April 28, 2005 (Serial No. 109-11).
    Public Performance Rights Organizations, May 11, 2005 
(Serial No. 109-25).
    Intellectual Property Theft in China, May 17, 2005 (Serial 
No. 109-34).
    Intellectual Property Theft in Russia, May 17, 2005 (Serial 
No. 109-34).
    Copyright Office Views on Music Licensing Reform, June 21, 
2005 (Serial No. 109-28).
    Review of U.S. Patent and Trademark Office Operations, 
Including Analysis of General Accounting Office, Inspector 
General, and National Academy of Public Administration Reports, 
September 8, 2005 (Serial No. 109-48).
    Reducing Peer-to-Peer (P2P) Piracy on University Campuses: 
A Progress Update, September 22, 2005 (Serial No. 109-56).
    Improving Federal Court Adjudication of Patent Cases, 
October 6, 2005 (Serial No. 109-59). Content Protection in the 
Digital Age: The Broadcast Flag, High-Definition Radio, and the 
Analog Hole, November 3, 2005 (Serial No. 109-80).
    Federal Courts Jurisdiction Clarification Act, November 15, 
2005 (Serial No. 109-67).
    International IPR Report Card- Assessing U.S. Government 
and Industry Efforts to Enhance Chinese and Russian Enforcement 
of Intellectual Property Rights, December 7, 2005 (Serial No. 
109-88).
    Report on Orphan Works by the Copyright Office, March 8, 
2006 (Serial No. 109-94).
    Remedies for Small Copyright Claims, March 29, 2006 (Serial 
No. 109-92).
    Patent Quality Enhancement in the Information-Based 
Economy, April 5, 2006 (Serial No. 109-99).
    Patent Harmonization, April 27, 2006 (Serial No. 109-100).
    Discussion Draft of the Section 115 Reform Act (SIRA) of 
2006, May 16, 2006 (Serial No. 109-108).
    Patent Trolls: Fact or Fiction?, June 15, 2006 (Serial No. 
109-104).

Digital Music Licensing and Section 115 of the Copyright Act (Serial 
        No. 109-6)

    The hearing was held to update the Subcommittee on private 
sector negotiations that have been ongoing since a March 2004 
Subcommittee hearing on Section 115 of the Copyright Act. The 
hearing also reviewed related music licensing issues. This 
hearing was the first of a series of music licensing hearings 
during the 109th Congress and explored the possibility of 
introducing legislation on this topic for later in the term.
    The following witnesses appeared and submitted a written 
statement for the record: Wood Newton, Nashville Songwriters 
Association, International; David Israelite, President and 
Chief Executive Officer, National Music Publishers' 
Association; Larry Kenswil, President, e-Labs, Universal Music 
Group; and Jonathan Potter, Executive Director, Digital Media 
Association (DiMA).

``Holmes Group,'' the Federal Circuit, and the State of Patent Appeals 
        (Serial No. 109-7)

    The hearing reviewed the Supreme Court decision of Holmes 
Group, Inc., v. Vornado Air Circulation Systems, Inc., to 
determine whether the U.S. Court of Appeals for the Federal 
Circuit should have plenary authority to hear all patent 
appeals from lower courts. In addition, the Subcommittee 
explored the extent to which the Federal Circuit is 
accomplishing its main intended purpose of unifying patent law.
    The following witnesses appeared and submitted a written 
statement for the record: Edward R. Reines, Esq., Weil, 
Gotshal, & Manges, LLP; Arthur D. Hellman, Professor of Law, 
University of Pittsburgh School of Law; Sanjay Prasad, Chief 
Patent Counsel, Oracle Corporation; and Meredith Martin Addy, 
Esq., Brinks, Hofer, Gilson & Lione.

Digital Music Inoperability and Availability (Serial No. 109-9)

    The purpose of the hearing was to explore one of the issues 
concerning digital music services and digital music licensing. 
Consumer adoption of digital music services appears to be high, 
indicating consumer acceptance of such services. However, some 
have suggested that consumer adoption of the services would be 
even higher if consumers better understood the various 
restrictions and interoperability issues that accompany digital 
music. Others have suggested that consumers do understand these 
restrictions and interoperability issues and have accepted them 
with little or no complaint. The issue has an impact upon 
artist's royalties if consumers cannot pay for legal copies of 
their music. This hearing did not focus on government 
technology mandates or the Digital Millennium Copyright Act 
(DMCA), although both are part of the digital interoperability 
discussion.
    The following witnesses appeared and submitted a written 
statement for the record: Dr. Mark Cooper, Director of 
Research, Consumer Federation of America; Raymond Gifford, 
President, The Progress & Freedom Foundation; Dr. William 
Pence, Chief Technology Officer, Napster; and Michael Bracy, 
Policy Director, Future of Music Coalition.

Committee Print Regarding Patent Quality Improvement (Part 1) (Serial 
        No. 109-11)

    The purpose of the hearing was to explore the merits of a 
Committee Print that incorporates a number of changes geared 
toward improving the quality of patents issued by the U.S. 
Patent and Trademark Office (PTO). The Print also speaks to 
certain patent practices that disrupt the operations of 
manufacturers and other businesses. While the Subcommittee has 
documented a steady increase in application pendency and 
backlogs at the PTO in recent years, the consensus view among 
agency officials and the inventor community is that efforts to 
address these problems should not take precedent over improving 
patent quality. Patents of questionable scope or validity waste 
valuable resources by inviting third-party challenges and 
ultimately discourage private-sector investment.
    The following witnesses appeared and submitted a written 
statement for the record: J. Jeffrey Hawley, Legal Division 
Vice President and Director, Patent Legal Staff, Eastman Kodak 
Company, on behalf of the Intellectual Property Owners 
Association (IPO); Richard J. Lutton, Jr., Chief Patent 
Counsel, Apple, on behalf of the Business Software Alliance 
(BSA); Jeffrey P. Kushan, Esq., Sidley, Austin, Brown and Wood, 
LLP, on behalf of Genetech; and William L. LaFuze, Partner, 
Vinson & Elkins, LLP, and Chair, Section on Intellectual 
Property Law, the American Bar Association, on behalf of the 
ABA and the Section of Intellectual Property Law.

Committee Print Regarding Patent Quality Improvement (Part 2) (Serial 
        No. 109-11)

    See the background description of the oversight hearing of 
the same name, Part 1, above.
    The following witnesses appeared and submitted a written 
statement for the record: The Honorable Jon W. Dudas, Under 
Secretary of Commerce for Intellectual Property & Director of 
the U.S. Patent and Trademark Office; Richard C. Levin, 
President, Yale University, on behalf of the National Research 
Council; Nathan P. Myhrvold, Chief Executive Officer, 
Intellectual Ventures; and Darin E. Bartholomew, Senior 
Attorney, Patent Department, John Deere and Company, on behalf 
of the Financial Services Roundtable.

Public Performance Rights Organizations (Serial No. 109-25)

    The purpose of the hearing was to explore the operations of 
the three public performing rights organizations (PROs) in the 
United States--ASCAP (American Society of Composers, Authors, 
and Publishers); BMI (Broadcast Music Incorporated); and SESAC 
(Society of European Songwriters and Composers). ASCAP and BMI 
operate under Department of Justice consent decrees, while 
SESAC does not. ASCAP and BMI combined represent in excess of 
90% of the works available through the three PROs. The 
differences in size and existence of consent decrees for two of 
the three PROs result in varied licensing practices that impact 
those who seek to obtain public performance licenses. These 
same differences have also generated a competition dispute 
between ASCAP/BMI and SESAC.
    The following witnesses appeared and submitted a written 
statement for the record: Del R. Bryant, President and Chief 
Executive Officer, Broadcast Music Inc. (BMI); Stephen Swid, 
Chairman and Chief Executive Officer, SESAC Inc.; Jonathan M. 
Rich, Partner, Morgan Lewis & Bockius, on behalf of ASCAP; and 
Will Hoyt, Executive Director, Television Music License 
Committee (TMLC).

Intellectual Property Theft in China (Serial No. 109-34)

    The purpose of this hearing was to receive testimony and to 
assess the current state of legal and enforcement policies that 
relate to the protection of Intellectual Property Rights (IPR) 
within China. The hearing focused specifically on continuing 
enforcement issues in China as well as the recent decision by 
the U.S. Trade Representative not to invoke WTO trade dispute 
mechanisms against the Chinese.
    The following witnesses appeared and submitted a written 
statement for the record: Victoria Espinel, Acting Assistant 
U.S. Trade Representative for Intellectual Property, Office of 
U.S. Trade Representative; Ted C. Fishman, Author & Journalist, 
China, Inc.; Myron Brilliant, Vice President, East Asia, U.S. 
Chamber of Commerce; and Eric H. Smith, President, 
International Intellectual Property Alliance (IIPA).

Intellectual Property Theft in Russia (Serial No. 109-34)

    The hearing addressed specific IP enforcement problems 
within the Russian Federation, including evidence that a 
substantial number of illicit optical disk plants are being 
operated on land owned and controlled by the government. This 
hearing assessed whether there are ``lessons learned'' from 
Chinese accession to the WTO that ought to be applied in 
advance of US support for Russian accession.
    The following witnesses appeared and submitted a written 
statement for the record: the Honorable Victoria Espinel, 
Acting Assistant U.S. Trade Representative for Intellectual 
Property, Office of U.S. Trade Representative; Eric Schwartz, 
Vice President & Special Counsel, International Intellectual 
property Alliance (IIPA); Bonnie J.K. Richardson, Senior Vice 
President, International Policy, Motion Picture Association of 
America; and Matthew T. Gerson, Senior Vice President, Public 
Policy and Government Relations, Universal Music Group.

Copyright Office Views on Music Licensing Reform (Serial No. 109-28)

    The purpose of this hearing was to review a Copyright 
Office print on music licensing reform that would merge the 
administration of mechanical and performing rights of 
copyrighted musical works to eliminate many of the licensing 
issues that have been identified as slowing the roll-out of new 
digital music services.
    The following witness appeared and submitted a written 
statement for the record: the Honorable Marybeth Peters, 
Register of Copyrights, Copyright Office of the united States, 
the Library of Congress..

Review of U.S. Patent and Trademark Office Operations, Including 
        Analysis of General Accounting Office, Inspector General, and 
        National Academy of Public Administration Reports (Serial No. 
        109-48)

    The purpose of the hearing was to review the operations of 
the U.S. Patent and Trademark Office (PTO) and to identify 
problems that hinder its effectiveness. Recent reports from the 
Inspector General's office and the General Accountability 
Office (GAO) have focused on such issues as the hiring and 
retention of patent examiners, the PTO's application backlog, 
the current steps to achieve a paperless (electronic) patent 
process, and time required to process patents.
    The following witness appeared and submitted a written 
statement for the record: the Honorable Jon Dudas, Under 
Secretary of Commerce for Intellectual Property & Director, 
U.S. Patent and Trademark Office (PTO); Anu K. Mittal, 
Director, Science and Technology Issues, U.S. General 
Accountability Office (GAO); Ronald J. Stern, President, Patent 
Office Professional Association (POPA); and Charles Van Horn, 
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP.

Reducing Peer-to-Peer (P2P) Piracy on University Campuses: A Progress 
        Update (Serial No. 109-56)

    The hearing focused on the extent to which university-based 
piracy contributes to digital copyright infringement generally. 
The Subcommittee also explored whether the affected schools 
have implemented policies to educate students about online 
piracy of digital works and developed programs to thwart the 
practice. This hearing followed up on hearings of the same 
topic held in February 2003 and September 2004.
    The following witness appeared and submitted a written 
statement for the record: Daniel A. Updegrove, Vice President 
for Information Technology, University of Texas at Austin; 
Norbert W. Dunkel, Director of Housing and Residence and 
Education, University of Florida; William J. Raduchel, Chairman 
and Chief Executive Officer, Ruckus Network; and Richard 
Taylor, Senior Vice President, External Affairs & Education, 
Motion Picture Association of America (MPAA).

Improving Federal Court Adjudication of Patent Cases (Serial No. 109-
        59)

    The purpose of the hearing was to examine the state of 
patent case adjudication by the Federal judiciary and to 
consider the merits of several structural and litigation 
reforms that have been proposed to improve the adjudication of 
patent disputes. This hearing examined several proposals (1) to 
improve the accuracy of patent claims construction and trial 
adjudication and (2) to increase judicial expertise and 
efficiency in the disposition of patent cases.
    The following witness appeared and submitted a written 
statement for the record: Kimberly A. Moore, Professor of Law, 
George Mason University School of Law; John B. Pegram, Senior 
Counsel, New York Office, Fish & Richardson, P.C.; Chris J. 
Katopis, Drinker Biddle & Reath LLP; the Honorable T. S. Ellis, 
III, United States District Judge, Eastern District of 
Virginia.

Content Protection in the Digital Age: The Broadcast Flag, High-
        Definition Radio, and the Analog Hole (Serial No. 109-80)

    The purpose of the hearing was to explore content 
protection in the digital age in three different settings--the 
broadcast flag, HD radio, and the analog hole. Consumer 
adoption of digital sources of movies (DVDs) and music (iTunes, 
Napster, XM, Sirius) continues to grow sharply. However, 
copyright owners have argued that transmitting unprotected 
digital content to consumers will enable mass piracy of high 
quality copies of the works. Several methods are currently 
being used to encrypt or otherwise restrict access to and 
redistribution of digital content. DVDs are encrypted with the 
Content Scrambling System (CSS). Music downloads from iTunes 
are wrapped in a digital rights management technology called 
FairPlay that permits a limited number of copies to be made of 
a work protected by the method. XM and Sirius satellite radio 
receivers do not include a digital ``signal-out'' jack to 
enable digital copies.
    The following witness appeared and submitted a written 
statement for the record: the Honorable Dan Glickman, Chairman 
and Chief Executive Officer, Motion Picture Association of 
America (MPAA); Mitch Bainwol, Chairman and Chief Executive 
Officer, Recording Industry Association of America (RIAA); Gigi 
B. Sohn, President, Public Knowledge; and Michael Petricone, 
Vice President, Government Affairs, Consumer Electronics 
Association (CEA).

Federal Courts Jurisdiction Clarification Act (Serial No. 109-67)

    The purpose of this hearing was to explore the merits of a 
Committee Print that incorporates changes to title 28, United 
States Code, governing Federal district court jurisdiction. 
These changes have been submitted by the Judicial Conference of 
the United States. The changes to title 28 are intended to 
resolve particular problems that have arisen in the application 
of Federal jurisdictional statutes. The Committee on Federal-
State Jurisdiction for the Judicial Conference developed the 
findings for the Committee Print, which was later approved by 
the Judicial Conference.
    The following witness appeared and submitted a written 
statement for the record: the Honorable Janet C. Hall, Judge, 
United States District Court for the District of Connecticut, 
on behalf of the Judicial Conference Committee on Federal-State 
Jurisdiction; Arthur Hellman, Professor, University of 
Pittsburgh School of Law; and Richard A. Samp, Chief Counsel, 
Washington Legal Foundation.

International IPR Report Card--Assessing U.S. Government and Industry 
        Efforts to Enhance Chinese and Russian Enforcement of 
        Intellectual Property Rights (Serial No. 109-88)

    The purpose of the oversight hearing was to receive 
testimony and to assess the current state of legal and 
enforcement policies that relate to the protection of 
Intellectual Property Rights (IPR) within China and the Russian 
Federation. A principal focus of this hearing was an assessment 
of the effectiveness of U.S. Government and industry efforts to 
jointly develop a comprehensive strategy for enhancing respect 
for intellectual property rights by the governments of China 
and the Russian Federation.
    The following witness appeared and submitted a written 
statement for the record: the Honorable Chris Israel, 
Coordinator for International Intellectual Property 
Enforcement, U.S. Department of Commerce; the Honorable 
Victoria Espinel, [Acting] Assistant U.S. Trade Representative 
for Intellectual Property, Office of U.S. Trade Representative; 
Eric H. Smith, President, International Intellectual Property 
Alliance (IIPA); and Joan Borsten, President, Films by Jove, 
Inc.

Report on Orphan Works by the Copyright Office (Serial No. 109-94)

    The purpose of the hearing was to review the Copyright 
Office ``Report on Orphan Works.'' It has been released after 
one year of work in which more than 800 public comments were 
received and two rounds of public hearings were held. The 
report is of keen interest to both the copyright owner and 
copyright user community that are both impacted by orphan works 
issues. The term ``orphan works'' refers to copyrighted works 
whose owners cannot be located. The term does not apply to 
works in the public domain or to copyrighted works whose owners 
are asking for royalties or licensing terms that a potential 
user does not wish to accept. Efforts to access an orphan works 
is typically stymied because the owner cannot be found to 
authorize its use by a third party, possibly in exchange for a 
royalty fee. Although other provisions of existing copyright 
law may apply to potential orphan-works situations and allow 
their use, such as fair use and reproductions by libraries and 
archives, these provisions cover only a limited number of 
orphan-works situations.
    The following witness appeared and submitted a written 
statement for the record: Jule L. Sigall, Associate Register 
for Policy and International Affairs, Copyright Office of the 
United States, The Library of Congress; Allan Adler, Vice 
President for Legal and Government Affairs, Association of 
American Publishers, Inc. (AAP); David P. Trust, Chief 
Executive Officer, Professional Photographers of America, Inc.; 
and Maria A. Pallante, Associate General Counsel and Director 
of Licensing, The Solomon R. Guggenheim Foundation (Guggenheim 
Museum).

Remedies for Small Copyright Claims (Serial No. 109-92)

    The purpose of the oversight hearing was to investigate the 
issues faced by copyright owners when their works are infringed 
and the damages caused by the infringement use would be small, 
perhaps only a few hundred or thousand dollars. This issue 
affects all copyright owners, but is particularly acute for 
owners of certain categories of works, including photographers, 
illustrators, graphic artists, and needlepoint designers. 
Software, music, and movie companies have the financial 
resources to pursue such claims, but often have much bigger 
cases to pursue.
    The following witness appeared and submitted a written 
statement for the record: Paul Aiken, Executive Director, 
Authors Guild; Jenny Toomey, Executive Director, Future of 
Music Coalition; Brad Holland, founding Board Member, 
Illustrators' Partnership of America; and Victor S. Perlman, 
General Counsel and Managing Director, American Society of 
Media Photographers, Inc.

Patent Quality Enhancement in the Information-Based Economy (Serial No. 
        109-99)

    The purpose of the hearing was to explore the extent to 
which the quality of U.S.-issued patents have deteriorated in 
recent years and the resulting effect on the American economy. 
Quality enhancement is one of the driving themes of patent 
reform in the 109th Congress.
    The following witness appeared and submitted a written 
statement for the record: the Honorable Jon W. Dudas, Under 
Secretary of Commerce for Intellectual Property & Director of 
the U.S. Patent and Trademark Office; James Balsillie, Chairman 
and Co-Chief Executive Officer, Research In Motion (RIM); 
Robert A. Stewart, Director and Chief Patent Counsel of 
Americas, UBS AG; and Mark A. Lemley, William H. Neukom 
Professor of Law, Stanford Law School.

Patent Harmonization (Serial No. 109-100)

    The purpose of the hearing was to explore the merits of 
promoting global harmonization within the U.S. patent system. 
Proponents of harmonization argued that inventors and the 
public are better served when patent systems worldwide share 
the same basic components or framework. This makes it easier 
and cheaper to obtain international patent protection.
    The following witness appeared and submitted a written 
statement for the record: Q. Todd Dickinson, Vice President and 
Chief Intellectual Property Counsel, General Electric Company; 
Robert A. Armitage, Senior Vice President and General Counsel, 
Eli Lilly and Company; Gary Mueller, President and Chief 
Executive Officer, Digital Now, Inc.; and Pat Choate, Political 
Economist and author of Hot Property: The Stealing of Ideas in 
an Age of Globalization.

Discussion Draft of the Section 115 Reform Act (SIRA) of 2006 (Serial 
        No. 109-108)

    The purpose of the hearing was to hear testimony on H.R. 
___, a discussion draft to reform Section 115 of Title 17, the 
U.S. Copyright Act for digital music services. Over the past 
two years, the Committee has held a number of hearings on music 
licensing reform, focusing on Section 115 of the Copyright Act. 
Although digital music services continue to grow in popularity, 
there are a number of obstacles to the success of the 
transition to digital music. Some of the largest obstacles are 
the current inefficiencies in the licensing system for 
mechanical rights, often referred as the ``download'' right.
    The following witnesses appeared and submitted a written 
statement for the record: David Israelite, President and Chief 
Executive Officer, National Music Publishers' Association 
(NMPA); Jonathan Potter, Executive Director, Digital Media 
Association (DiMA); Rick Carnes, President, Songwriters Guild 
of America (SGA); and Cary Sherman, President, Recording 
Industry Association of America, Inc. (RIAA).

Patent Trolls: Fact or Fiction? (Serial No. 109-104)

    The purpose of the hearing was to define ``trolling'' 
behavior, determine its degree of prevalence in the patent 
system, and explore legislative reforms to combat it. Critics 
of the patent system, including certain high-tech and software 
companies, believe that trolls contribute to the proliferation 
of poor quality patents. Ultimately, these critics assert, 
trolls force manufacturers to divert their resources from 
productive endeavors to combating bogus infringement suits. The 
contents of the bill, the substitute, and the redline are based 
on submissions proffered by the PTO, other government entities, 
and industry, which were reviewed by Subcommittee Chairman 
Lamar Smith and staff. Much of its text was culled from a 
Committee Print that was the subject of two prior Subcommittee 
hearings during the 109th Congress.
    The following witnesses appeared and submitted a written 
statement for the record: Edward R. Reines, Esq., Weil, Gotshal 
& Manges, LLP; Dean Kamen, President, DEKA Research & 
Development Corporation; Paul Misener, Vice President for 
Global Public Policy, Amazon.com; and Chuck Fish, Vice 
President & Chief Patent Counsel, Time Warner, Inc.
        SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS

   JOHN N. HOSTETTLER, Indiana, 
             Chairman

SHEILA JACKSON LEE, Texas            STEVE KING, Iowa
HOWARD L. BERMAN, California         LOUIE GOHMERT, Texas
ZOE LOFGREN, California              LAMAR SMITH, Texas
LINDA T. SANCHEZ, California         ELTON GALLEGLY, California
MAXINE WATERS, California            BOB GOODLATTE, Virginia
MARTIN T. MEEHAN, Massachusetts      DANIEL E. LUNGREN, California
                                     JEFF FLAKE, Arizona
                                     ROBERT D. INGLIS, South Carolina
                                     DARRELL E. ISSA, California

          Tabulation of subcommittee legislation and activity

Public:
    Legislation referred to Subcommittee.........................   178
    Legislation on which hearings were held......................     3
    Legislation reported favorably to the full Committee.........     0
    Legislation reported adversely to the full Committee.........     0
    Legislation reported without recommendation to the full 
      Committee..................................................     0
    Legislation reported as original measure to the full 
      Committee..................................................     0
    Legislation discharged from the Subcommittee.................     5
    Legislation pending before the full Committee................     0
    Legislation reported to the House............................     4
    Legislation discharged from the Committee....................     0
    Legislation pending in the House.............................     2
    Legislation passed by the House..............................     2
    Legislation pending in the Senate............................     1
    Legislation vetoed by the President (not overridden).........     0
    Legislation enacted into Public Law..........................     1
    Days of Legislative Hearings.................................     3
    Days of Oversight Hearings...................................    25
Private:
  Claims:
    Legislation referred to the Subcommittee.....................     4
    Legislation on which hearings were held......................     0
    Legislation reported favorably to the full Committee.........     1
    Legislation pending before the full Committee................     1
    Legislation discharged from the full Committee...............     0
    Legislation pending in the House.............................     0
    Legislation passed by the House..............................     0
    Legislation pending in the Senate............................     0
    Legislation enacted into Private Law.........................     0
  Immigration:
    Legislation referred to the Subcommittee.....................    77
    Legislation on which hearings were held......................     0
    Legislation reported favorably to the full Committee.........     2
    Legislation pending before the full Committee................     0
    Legislation discharged from the full Committee...............     0
    Legislation pending in the House.............................     0
    Legislation passed by the House..............................     0
    Legislation pending in the Senate............................     0
    Legislation enacted into Private Law.........................     0

                    Jurisdiction of the Subcommittee

    The Subcommittee on Immigration, Border Security, and 
Claims has jurisdiction over immigration and naturalization, 
border security, admission of refugees, treaties, conventions 
and international agreements, claims against the United States, 
federal charters of incorporation, private immigration and 
claims bills, non-border enforcement, other appropriate matters 
as referred by the Chairman, and relevant oversight.

                      Legislation Enacted Into Law


H.R. 2293, To Provide Special Immigrant Status for Persons Serving as 
        Translators with the United States Armed Forces

    Summary.--A number of alien translators are currently 
working in Iraq and Afghanistan embedded with units of the U.S. 
Armed Forces and providing extremely valuable services. Their 
cooperation and close identification with the U.S. military 
have put their and their families' lives in danger. This danger 
will only escalate after U.S. forces leave or reduce their 
strength in Iraq and Afghanistan. The U.S. Marine Corps has 
therefore requested immigration relief for this small group of 
brave individuals.
    Under the legislation, permanent resident visas are 
available to nationals of Iraq or Afghanistan (and their 
spouses and minor children) who have worked directly with the 
U.S. Armed Forces as translators for at least 12 months, who 
have obtained favorable written recommendations from the 
officer in charge of the unit they worked with, and who have 
cleared a background check. No more than 50 principals may 
receive permanent resident status in any fiscal year, and the 
recipients will count towards the 10,000 per year quota of 
special immigrant visas.
    Legislative History.--On May 11, 2005, Subcommittee on 
Immigration, Border Security and Claims Chairman John 
Hostettler introduced H.R. 2293, to provide special immigrant 
status for aliens serving as translators with the United States 
Armed Forces. On May 18, 2005, the Judiciary Committee ordered 
H.R. 2293 reported as amended by a voice vote. On May 26, 2005, 
the Judiciary Committee reported H.R. 2293 (H. Rept. 109-99). 
On January 1, 2006, the President signed into law H.R. 1815, 
the National Defense Authorization Act for Fiscal Year 2006 
(Pub. L. No.109-163), sec. 1059 of subtitle F of title X of 
which contained the language of H.R. 2293.

H.R. 4830, the Border Tunnel Prevention Act

    Summary.--H.R. 4830 amends the federal criminal code to 
prohibit the construction or financing of an unauthorized 
tunnel or subterranean passage that crosses the international 
border between the United States and another country. It 
imposes a 20-year prison term for such offense.
    H.R. 4830 imposes a 10-year prison term on any person who 
recklessly permits the construction or use of such a tunnel or 
passage on land that such person owns or controls, and doubles 
penalties for persons who use such a tunnel or passage to 
unlawfully smuggle an alien, illegal goods, controlled 
substances, weapons of mass destruction, or members of a 
terrorist organization.
    H.R. 4830 directs the U.S. Sentencing Commission to 
promulgate or amend sentencing guidelines to provide for 
increased penalties for persons convicted of criminal offenses 
related to the construction or financing of such a tunnel or 
passage.
    Legislative History.--On March 1, 2006, Representative 
David Dreier introduced H.R. 4830, the Border Tunnel Prevention 
Act of 2006. On April 26, 2006, Senator Dianne Feinstein 
introduced S. 2652, the Border Tunnel Prevention Act. On May 
22, 2006, Representative Harold Rogers introduced H.R 5441, the 
Department of Homeland Security Appropriations Act, 2007. On 
July 13, 2006, the Senate passed H.R. 5441, sec. 556 of title V 
of which contained the language of the Border Tunnel Prevention 
Act. On September 21, 2006, the House passed H.R. 4830 by a 
vote of 422-0. On September 28, 2006, the conference report to 
H.R. 5441 was filed (H. Rept. 109-699), sec. 551 of title V of 
which contained the language of the Border Tunnel Prevention 
Act. The House passed the conference report on September 29 by 
a vote of 412-6, and the Senate passed the conference report on 
the same day by voice vote. On October 4, 2006, the President 
signed into law the conference report to H.R. 5441 (Pub. L. No. 
109-295), conference report 109-699.

Extension of the ``Mikulski'' H-2B Visa Program Amendment

    Summary.--The Mikulski amendment to the REAL ID Act 
provided that aliens who had received H-2B visas in any of the 
last three years would not be counted toward the 2005 or 2006 
quotas of 66,000 visas when receiving H-2B visas in those 
years. This provision extended the life of the Mikulski 
amendment by providing that aliens who had received H-2B visas 
in 2004, 2005, or 2006 shall not be counted toward the 2007 
quota when receiving H-2B visas in 2007.
    Legislative History.--On April 6, 2006, Representative 
Duncan Hunter introduced H.R. 5122, the National Defense 
Authorization Act for Fiscal Year 2007. On June 22, 2006, the 
Senate passed H.R. 5122 by unanimous consent, sec. 1091 of 
subtitle I of title X of which provided for a two year 
extension of the Mikulski amendment. On September 29, 2006, the 
conference report to H.R. 5122 was filed (H. Rept. 109-702). On 
that date, the House passed the conference report by a vote of 
398-23, and on the next day the Senate passed the conference 
report by unanimous consent. Section 1074 of title X of the 
conference report contained a modified one year extension of 
the Mikulski amendment. On October 17, 2006, the President 
signed into law H.R. 5122, the John Warner National Defense 
Authorization Act for Fiscal Year 2007 (Public Law No. 109-
364).

S. 3821, the COMPETE Act of 2006

    Summary.--S. 3821 allows minor league professional athletes 
and certain performers (including ice skaters performing in 
theatrical ice productions) to utilize the P-1 nonimmigrant 
visa category. The P-1 visa category allows athletes at an 
``internationally recognized level of performance'' and 
professional entertainers and artists to temporarily enter the 
U.S. To date, U.S. Citizenship and Immigration Services has 
interpreted the Immigration and Nationality Act in such a way 
as to only allow major league professional athletes to utilize 
the P-1 visa category. As a consequence, minor league baseball 
and hockey players have been forced to utilize the H-2B visa 
category, which is capped at 66,000 visas annually and has been 
oversubscribed in recent years. Ice-skaters who perform in 
special events in the U.S. find themselves in the same 
situation.
    Legislative History.--On August 3, 2006, Senator Susan 
Collins introduced S. 3821. On December 6, 2006, the Senate 
passed S. 3821 with an amendment by unanimous consent. On 
December 9, 2006, the House passed S. 3821 under suspension of 
the rules by a voice vote.

H.R. 4997, the Physicians for Underserved Areas Act

    Summary.--Aliens who participate in medical residencies in 
the United States on ``J'' exchange program visas must 
generally leave the U.S. at the conclusion of their residencies 
to reside abroad for two years before they can be eligible for 
permanent residence or status as ``H-1B'' or ``L'' visa 
nonimmigrants. The intent behind this policy is to encourage 
American-trained foreign doctors to return home to improve 
health conditions and advance the medical profession in their 
native countries. In 1994, Congress created a waiver (until 
June 1, 1996) of the two-year foreign residence requirement 
when requested by state departments of public health for 
foreign doctors who commit to practicing medicine for no less 
than three years in a geographic area or areas designated by 
the Secretary of Health and Human Services as having a shortage 
of health care professionals. The number of foreign doctors who 
could receive the waiver was limited to 20 per state. In 1996, 
Congress extended the waiver to June 1, 2002. In 2002, Congress 
extended the waiver until June 1, 2004. At the same time, the 
numerical limitation on waivers was increased to 30 per state. 
In 2004, Congress extended the waiver until June 1, 2006. H.R. 
4997 extends the waiver until June 1, 2008.
    Legislative History.--On March 16, 2006, Representative 
Jerry Moran introduced H.R. 4997. On May 18, 2006, the 
Subcommittee on Immigration, Border Security and Claims held a 
hearing on H.R 4997. On September 27, 2006, the Judiciary 
Committee ordered H.R. 4997 reported, as amended by a voice 
vote. On December 6, 2006, the House of Representatives passed 
H.R. 4997 under suspension of the rules by a voice vote. On 
December 9, 2006, the Senate passed H.R. 4997 by unanimous 
consent.

           Legislation Passed by the House of Representatives


H.R. 1817, the Department of Homeland Security Authorization Act for 
        Fiscal Year 2006

    Summary of Major Provisions within the Jurisdiction of the 
Judiciary Committee.--Section 102 of H.R. 1817 would have 
authorized the hiring of 2,000 full-time Border Patrol agents 
above the number of such positions for which funds were 
allotted for fiscal year 2005 (excluding any supplemental 
appropriations). Section 108 would have authorized the hiring 
of 300 U.S. Immigration and Customs Enforcement attorneys and 
300 U.S. Citizenship and Immigration Services adjudicators 
above the number of such positions for which funds were 
allotted for fiscal year 2005. Section 109 would have 
authorized the appropriation of $40,000,000 to reimburse states 
and localities for training costs they incur pursuant to 
entering into agreements with DHS under section 287(g) of the 
INA to assist in the enforcement of immigration laws. Section 
402 would have required the Commissioner of U.S. Customs and 
Border Protection to prepare a report on the effectiveness of 
the One Face at the Border Initiative (in which each inspector 
at a port of entry can oversee the enforcement of immigration, 
customs, and agriculture laws in regard to persons seeking 
admission). Section 501 would have required the Secretary of 
DHS to report on the current organizational structure of DHS, 
including a description of the rationale for, and any benefits 
and costs of, the division of immigration and customs 
enforcement into an interior agency (ICE) and a border agency 
(CBP) and the combination within both agencies of immigration 
and customs enforcement functions. Section 514 would have 
required the Government Accountability Office to conduct a 
study on the consequences of increasing the fees for 
applications for Temporary Protected Status. Section 515 would 
have required GAO to conduct a study on expanding the use of 
premium processing fees to family-based immigration petitions 
and applications. Section 520 would have reaffirmed the 
inherent authority of state and local law enforcement to assist 
in the enforcement of immigration laws. Section 521 would have 
required DHS to establish a training manual for state and local 
law enforcement interested in assisting in the enforcement of 
immigration laws.
    Legislative History.--On April 26, 2005, Representative 
Chris Cox introduced H.R. 1817. On April 27, 2005, the Homeland 
Security Committee ordered the bill reported as amended by a 
voice vote. On May 3, 2005, the Homeland Security Committee 
reported the bill (H. Rept. 109-71, Part I). On May 12, 2005, 
the Judiciary Committee ordered the bill reported as amended by 
a voice vote. On May 13, 2005, the Judiciary Committee reported 
the bill (H. Rept. 109-71, Part III). On May 18, 2005, the 
House passed H.R. 1817 by a recorded vote of 424-4. No further 
action was taken on H.R. 1817.

H.R. 3827, the Immigration Relief for Hurricane Katrina Victims Act of 
        2005

    Summary.--H.R. 3827 would have provided special immigrant 
status for aliens who were the beneficiaries of immigrant 
petitions or labor condition applications pending on the date 
of Hurricane Katrina's arrival that were nullified as a direct 
result of the hurricane, and their spouses and children. This 
would have included, for example, individuals whose employment-
based visas were nullified because the businesses where they 
intended to work were destroyed by the hurricane.
    The bill would have extended nonimmigrant status for aliens 
disabled, or whose spouse or parent died, as a result of 
Hurricane Katrina. It also would have provided extensions of 
status for aliens unable to timely apply as a direct result of 
the hurricane. The bill would have provided relief to those 
aliens who won an immigrant visa through the diversity visa 
lottery program but were unable to use the visa as a direct 
result of the hurricane during the fiscal year for which it was 
allotted. It also would have allowed foreign students who were 
adversely affected by the hurricane to remain in status while 
re-enrolling in an education program.
    H.R. 3827 would have provided immigration relief for 
surviving spouses and children of citizens who died as a result 
of the hurricane. It would have allowed them to retain their 
status as relatives of hurricane victims while they petitioned 
for immigration benefits. It would have provided relief to 
family members of legal permanent residents by allowing 
petitions to remain valid even after the death of the legal 
permanent resident. And it would have provided similar relief 
to family members of asylees and refugees.
    Legislative History.--On September 20, 2005, Chairman F. 
James Sensenbrenner, Jr., introduced H.R. 3827. On September 
21, 2005, the House passed H.R. 3827 under suspension of the 
rules by a voice vote. No further action was taken on H.R. 
3827.

H.R. 3647, to Render Nationals of Denmark Eligible to Enter the United 
        States as Nonimmigrant Traders and Investors

    Summary.--``E-2'' visas are nonimmigrant visas available 
for treaty investors. Under the Immigration and Nationality 
Act, a visa is available to an alien who is:

        entitled to enter the United States under and in 
        pursuance of the provisions of a treaty of commerce and 
        navigation between the United States and the foreign 
        state of which he is a national, and the spouse and 
        children of any such alien if accompanying or following 
        to join him . . . solely to develop and direct the 
        operations of an enterprise in which he has invested . 
        . . a substantial amount of capital . . . .

    The U.S. has entered into treaties of commerce containing 
language similar to the E-2 visas since at least 1815, when we 
entered into a Convention to Regulate Commerce with the United 
Kingdom. Currently, the nationals of 74 countries are eligible 
for E-2 status. Nationals of Denmark are already eligible for 
``E-1'' (treaty trader) visas pursuant to the Treaty of 
Friendship, Commerce, and Navigation Between the United States 
and Denmark of October 1, 1951. The U.S. and Denmark signed a 
protocol to that treaty on May 2, 2001, that would grant Danes 
eligibility for E-2 visas. However, the Judiciary Committee has 
since made clear that all immigration provisions should go 
through the normal legislative process and not be contained in 
trade agreements or treaties. This bill therefore would grant 
access to E-2 nonimmigrant visa status to nationals of Denmark.
    Legislative History.--On September 6, 2005, Chairman F. 
James Sensenbrenner, Jr., introduced H.R. 3647. On September 
29, 2005, the Judiciary Committee ordered H.R. 3647 reported as 
amended by a voice vote. On October 18, 2005, the Judiciary 
Committee reported H.R. 3647 (H. Rept. 109-251). On November 
16, 2005, the House passed H.R. 3647 under suspension of the 
rules by a voice vote. No further action was taken on H.R. 
3647.

H.R. 4437, The Border Protection, Antiterrorism, and Illegal 
        Immigration Control Act of 2005

            Summary of major provisions of the House-passed bill within 
                    the jurisdiction of the Judiciary Committee. --
    1. Section 3. Sense of Congress on setting a manageable 
level of immigration. This section would have provided that it 
was the sense of Congress that the nation's immigration policy 
should be designed to enhance the economic, social and cultural 
well-being of the United States.
    2. Section 104. Biometric data enhancements. This section 
would have required that by October 1, 2006, the Secretary of 
Homeland Security have enhanced the connectivity between the 
Automated Biometric Identification System and Integrated 
Automated Fingerprint Identification System biometric databases 
and have collected 10-fingerprints from individuals through the 
United States Visitor and Immigrant Status Indicator Technology 
program during their initial enrollment.
    3. Section 118. Sense of Congress regarding enforcement of 
immigration laws. This section would have provided that it was 
the sense of Congress that the Administration should 
immediately use every tool available to enforce the immigration 
laws.
    4. Section 122. Completion of background and security 
checks. The Department of Homeland Security Inspector General 
recently released a report revealing that not all applications 
for immigration benefits underwent an Interagency Border 
Inspection System background check of the applicants before 
they were granted. This section would have required that no 
immigration benefit could be granted by a court of law or by 
DHS or the Executive Office for Immigration Review unless and 
until an IBIS check had been conducted, and until all 
derogatory information had been assessed and completed and 
until any suspected or alleged benefit fraud had been 
investigated and found to be unsubstantiated.
    5. Section 201. Definition of aggravated felony. This 
section would have amended the definition of aggravated felony 
in the INA to include all smuggling offenses and illegal entry 
and reentry crimes with a sentence of a year or more. It would 
also have brought the aggravated felony definition in line with 
federal criminal law by expanding it to include solicitation 
and assistance in specified offenses. The INA broadly defines 
the term ``aggravated felony''. If an alien has been convicted 
of such an offense, the alien will be ineligible for most forms 
of relief and for release from detention. Illegal reentry after 
such an offense will also subject the alien to serious criminal 
penalties. The aggravated felony definition does not 
effectively deter, however, many dangerous aliens from 
repeatedly reentering the United States illegally. 
Specifically, the definition only includes illegal entry and 
illegal reentry violations of the INA where the alien was 
previously deported for having committed another aggravated 
felony. The current definition is unduly restrictive in several 
respects. First, this definition does not reach aliens who 
previously committed various other felonies, even though those 
felonies may have been serious crimes. Second, it does not 
reach aggravated felon aliens who were previously deported, but 
who were not deported on the basis of their aggravated felony 
convictions. Section 201 would have solved this problem by 
including within the definition of aggravated felony a felony 
illegal entry or reentry offense under section 275(a) or 
section 276 of the INA, without regard to whether the alien had 
been previously deported subsequent to conviction of an 
aggravated felony. In addition to these changes, section 201 
would also have made all smuggling convictions aggravated 
felonies with the exception of smuggling related to an alien's 
immediate family.
    Finally, the section would have made clear that the 
definition of aggravated felony includes ``soliciting, aiding, 
abetting, counseling, commanding, inducing, procuring'' or a 
conspiracy to commit any of the offenses listed in section 
101(a)(43) of the INA, by incorporating the aiding and abetting 
language from federal law. This change is needed to reverse 
contrary Ninth Circuit precedent in criminal cases that has 
required federal prosecutors in seeking sentencing enhancements 
to prove that prior convictions were not based on aiding and 
abetting. This is often impossible to prove, because in federal 
court, and in almost every state jurisdiction, a defendant can 
be convicted of aiding and abetting a substantive offense, even 
if aiding and abetting is not specifically charged in the 
indictment.
    6. Section 202. Alien smuggling and related offenses. This 
section would have amended the alien smuggling provisions of 
the INA to include offenses where the offender acted in 
reckless disregard of the fact that the smuggled person was an 
alien not allowed to enter, placed mandatory minimum sentences 
on smuggling convictions, and facilitated DHS's efforts to 
seize smugglers' property.
    As the southwest border has become increasingly secure, 
more and more illegal aliens are utilizing the services of 
alien smugglers and the cost of their services has increased 
dramatically. Alien smuggling not only facilitates illegal 
immigration, but subjects smuggled aliens to inhumane 
treatment. Migrants are frequently abused or exploited, both 
during their journey and upon reaching the United States. There 
are many recent examples--aliens abandoned by their smugglers 
in the desert, without food or water, to avoid apprehension, 
and aliens who have died or suffered serious injuries when 
locked by smugglers into trucks and cargo containers. 
Consequently, aliens smuggled into the United States are at 
significant risk of physical injury, abuse, and death. In 
addition, smuggled aliens must often pay back their debts 
through long periods of indentured servitude in sweatshop 
conditions, and smugglers often coerce indebted aliens into 
drug trafficking, prostitution, and other illegal activities. 
Aliens who fail to cooperate with smugglers suffer severe 
penalties. Smuggling also poses a national security risk, as 
terrorists and criminals can utilize the same smugglers that 
economic migrants use.
    However, under current law, individuals convicted of alien 
smuggling crimes often receive lenient sentences, which have 
contributed to the upsurge in alien smuggling. Organized crime 
syndicates realize that the risk of punishment for smuggling 
aliens is far less than the risk for smuggling drugs or 
committing other serious crimes. And lenient sentences act to 
dissuade U.S. Attorneys from bringing cases.
    Under existing law, the offenses and penalties for 
unlawfully bringing aliens into the United States are set forth 
in two separate provisions, sections 274(a)(1) and 274(a)(2) of 
the INA. For historical reasons, those provisions were 
implemented and developed separately. As a result, the two 
provisions contain inconsistent mens rea elements, and provide 
disparate sentences for identical or substantially similar 
conduct. Accordingly, the successful prosecution of virtually 
identical conduct can lead to different results under current 
law, depending upon whether a violation of section 
274(a)(1)(A)(i) or (a)(2) is charged. Section 202 would have 
created a uniform mens rea standard for alien smuggling and 
related offenses, and set uniform sentences for violations of 
those offenses. Unlike current law, the penalties for those 
would have been based on the factual circumstances of the 
offense and the danger that the smuggling posed to the alien 
and to the community rather than on the code section charged. 
Thus, offenses that were committed for commercial profit would 
have been punished more severely than offenses that were not. 
Offenses that were committed to further other criminal acts 
would have been subject to even more serious mandatory 
sentences, as would have been offenses that result in injury or 
death. Consistent with existing law, offenses in which death 
results would have been be eligible for the death penalty.
    The section would also have increased the criminal 
penalties for certain alien smuggling offenses and established 
mandatory minimum sentences for serious and repeat offenders, 
and where the smuggling posed a risk to individuals or the 
nation.
    The section would have expanded the scope of the alien 
smuggling statute to reach conduct that is not covered by 
existing law. It would have reached conduct relating to 
facilitating the smuggling of aliens to the United States by 
persons who willfully participated in alien smuggling ventures, 
but where the government cannot demonstrate beyond a reasonable 
doubt that the smugglers knew the aliens were en route to the 
United States. Rather than forming centralized, tightly 
controlled hierarchies, alien smugglers often favor loose, 
short- or long-term associations. These global networks often 
match smugglers who specialize in particular nationalities or 
portions of routes. Under existing law, however, smugglers who 
play an integral role in facilitating the illegal movement of 
aliens to the United States cannot be prosecuted unless the 
government can prove that the smuggler knew or recklessly 
disregarded the fact that the aliens intended to travel to the 
United States. The section would have plugged this loophole.
    The section would also have helped to take the profit out 
of smuggling. Under existing law, civil forfeiture is limited 
to any conveyance used in smuggling. Section 202 would have 
permitted civil forfeiture of any property, real or personal, 
used to commit or facilitate the commission of a violation of 
amended subsection (a)(1), the gross proceeds of such 
violation, and property traceable to such property or proceeds.
    7. Section 203. Improper entry by, or presence of, aliens. 
This section would have made illegal presence in the United 
States a federal crime, and would have expanded the penalties 
for aliens who illegally entered the U.S. or who entered or 
were present illegally following convictions of certain crimes. 
It also would have expanded the penalties for marriage and 
immigration-related entrepreneurship fraud.
    Section 275 of the INA currently criminalizes illegal entry 
into the United States. Section 203 of the bill would have 
amended section 275 to state that it was a crime for an alien 
to be ``present in the United States in violation of the 
immigration laws or regulations prescribed thereunder.'' It 
thus would have removed incentives for aliens, having entered 
legally, to remain in the United States in violation of the 
terms of their visa or entry. Currently, ``visa overstay'' is 
not a criminal offense, and, as a practical matter, there are 
often no negative consequences to it. The Immigration and 
Naturalization service believed that about 41 percent of the 
total illegal immigrant population (as of 1996) consisted of 
alien who had overstayed temporary visas. Because overstaying a 
visa is not currently a criminal offense, in many cases an 
alien is no worse off for having remained in the United States 
past the expiration of an authorized stay than he would have 
been had he departed on time. On the contrary, in some cases 
aliens have sought relief based on factors that develop during 
the time they were out of status. In making overstaying a visa 
a federal crime, section 203 would have encouraged aliens to 
depart at the end of their authorized stay. It would have 
increased respect for the immigration system by deterring 
aliens who remain in the United States out of status in the 
mistaken belief that their visa overstay is merely a technical 
violation, or that if they elude authorities for long enough 
they will be granted relief from deportation based on acquired 
equities.
    Section 203 also would have contained sentence enhancements 
for illegal alien criminal offenders who remain in the United 
States after conviction. Finally, the section would have 
increased the penalties for marriage and immigration-related 
entrepreneurship fraud. Enhanced penalties are necessary to 
deter an increasing level of immigration fraud, particularly by 
criminal organizations that utilize, promote, or derive 
financial benefit from immigration fraud.
    8. Section 204. Reentry of removed aliens. This section 
would have set mandatory minimum sentences for aliens convicted 
of reentry after removal. Section 276 of the INA criminalizes 
attempted or successful entry into the United States by illegal 
aliens who have been previously excluded, deported, removed, or 
denied admission. Unfortunately, this provision has proven 
ineffective at deterring the reentry of aliens after removal 
into the United States. The problem is so out of control that 
United States Attorneys Offices have set threshholds for the 
number of reentries aliens must commit before they will be 
prosecuted. This problem is especially serious when it comes to 
criminal aliens. For example, Rafael Resendez-Ramirez, the so-
called ``Railway Killer'' who killed at least eight people over 
a three-year period in the late 1990s, had an extensive 
criminal record in the United States beginning in 1976, 
including provisions for burglary and aggravated assault. He 
also had an extensive immigration record, having been arrested 
for illegal entry on seven occasions in 1998 alone. As the 
Department of Justice's Inspector General found, however: 
``Because Resendez had not reached the threshold number of 
prior apprehensions for prosecution established in each of the 
stations where he was apprehended, he was not detained for 
prosecution,'' but instead was returned to Mexico. The IG found 
that ``after each return to Mexico, he re-entered the United 
States illegally and continued his criminal activities,'' 
including the December 1998 murder of Dr. Claudia Benton in 
Houston. Section 204 would have both deterred alien criminals 
from reentering illegally and encouraged prosecutors to take 
their cases when they do.
    The section would have also resolved an issue that has 
arisen in numerous prosecutions under section 276. At present, 
to prove a violation of section 276, the Government is required 
to show that the Secretary of Homeland Security did not consent 
to the alien applying for readmission to the United States or 
that the alien is not required to obtain such consent. Thus, in 
order to convict an alien of re-entering the United States 
after removal, the government must prove a negative, i.e., that 
the Attorney has not ``expressly consented to such alien's 
reapplying for admission.'' Each case therefore requires the 
government to perform an intensive search of its records, and 
then issue a certificate of nonexistence to certify that they 
search was done and no application from the specific alien-
defendant was found. Although almost no aliens ever apply for 
the Secretary's consent, DHS must nevertheless make an 
exhaustive search in each case. Section 204 would have 
converted permission to reenter into an affirmative defense to 
an illegal reentry charge. Because few aliens apply for the 
Secretary of Homeland Security's consent, and the defendant-
alien is in the best position to know whether he applied for 
such permission, this change would have properly apportioned 
the burden with respect to consent to reenter and eliminated 
the need for the Government to prove that the Secretary did not 
consent in its case-in-chief.
    9. Section 205. Mandatory sentencing ranges for persons 
aiding or assisting certain reentering aliens. This section 
would have deterred the smuggling of removed aliens by imposing 
on smugglers the same sentences that the aliens they had 
smuggled would have received.
    10. Section 206. Prohibiting carrying or using a firearm 
during and in relation to an alien smuggling crime. Section 
924(c) of Title 18 criminalizes the carrying or using of 
firearms in the commission of violent crimes or drug 
trafficking crimes. Presently, however, this provision does not 
cover alien smugglers who use firearms to further their 
criminal schemes. An increasing number of alien smugglers are 
utilizing firearms to facilitate their smuggling, and a greater 
number are expected to arm themselves as their livelihood is 
disrupted by U.S. agents patrolling America's borders. The 
willingness of smugglers to use and carry firearms endangers 
the lives of Border Patrol agents and the aliens who are being 
smuggled, not to mention innocent bystanders. The use of 
weapons also makes it more likely that smugglers and aliens 
will escape apprehension, as it allows them to forcibly resist 
border patrol officers. Section 206 would have subjected alien 
smugglers to the same penalties faced by criminals who carried 
firearms when they trafficked in narcotics and committed 
federal crimes of violence.
    11. Section 207. Clarifying changes. This section would 
have clarified that the provision barring entry to aliens who 
had made false claims to U.S. citizenship also applied to 
aliens who had made false claims to U.S. nationality. It also 
would have provided that DHS shall have access to any 
information kept by any federal agency as to any person who was 
seeking a benefit or privilege under the immigration law.
    12. Section 208. Voluntary departure reform. ``Voluntary 
departure'' is a benefit in removal proceedings that allows 
deportable aliens to agree to leave the United States within a 
specified time period on their own volition rather than 
formally being ordered removed. By departing voluntarily, 
aliens can avoid the adverse legal consequences of a final 
order of removal. Ideally, the government should also benefit 
from this practice, because it is spared the expenses of 
initiating removal proceedings, extensively litigating the 
aliens' cases, and, in the end, removing the aliens. The 
government may not realize such benefits in practice, however, 
because few aliens granted voluntary departure actually depart 
from the country expeditiously. In all too many cases, a grant 
of voluntary departure is often merely a prelude to years of 
further litigation in which the alien continues to benefit from 
delay in removal. Under current law, an alien who receives 
voluntary departure can appeal his immigration case to the 
Board of Immigration Appeals, and then to the Court of Appeals. 
Many circuit courts will toll the voluntary departure period 
pending review. At the end of this process, possibly years 
after the original voluntary departure grant, and after having 
every appeal denied, the alien can then leave the United States 
in accordance with the original voluntary departure grant.
    Section 208 would have changed this process to encourage 
aliens to depart under the terms of the voluntary departure 
order. The section would have amended the INA to offer clear 
advantages for aliens who agreed to voluntary departure and 
then actually departed, and to foreclose future litigation in 
the alien's case. Under the section, an alien would only have 
been granted voluntary departure pursuant to an agreement in 
which the alien agreed to waive appeal. This would not have 
precluded the alien from taking an appeal, however. If the 
alien opted to take an appeal in lieu of voluntary departure, 
the alien may have done so. The voluntary departure agreement 
would have been void, however. Section 208 also contained 
penalties in the even that the alien failed to depart in 
accordance with the voluntary departure agreement. Failure to 
depart would have subjected the alien to a $3000 fine, and the 
alien would have been barred from certain forms of relief for 
as long as the alien remained in the country and for 10 years 
thereafter. An alien who violated a voluntary departure 
agreement by failing to depart would not have been able to 
reopen his removal proceedings, except to apply for withholding 
of removal or protection under the Convention Against Torture. 
Taken together, these provisions would have freed up the 
government's limited judicial, litigation, and removal 
resources. They also would have provided the alien with 
incentives to depart the United States as the alien agreed. In 
addition, the section would have reduced the maximum period of 
voluntary departure before the end of proceedings from 120 to 
60 days, and aliens receiving such benefit would have had to 
post a bond or show that a bond would create a hardship or was 
unnecessary.
    13. Section 209. Deterring aliens ordered removed from 
remaining in the United States unlawfully and from unlawfully 
returning to the United States after departing voluntarily. The 
Department of Homeland Security estimates that some 480,000 
absconders--aliens who are under final orders of removal but 
have evaded apprehension and removal by DHS--are currently in 
the United States, and approximately 40,000 new absconders are 
added each year. In 2003, the Department of Justice Inspector 
General issued a report that found the former INS had 
successfully carried out removal orders with respect to only 
13% of non-detained aliens who were subject to final removal 
orders--and was able to remove only 3% of non-detained aliens 
who had unsuccessfully sought asylum. Much of the problem with 
removing alien absconders is the fact that there are currently 
few effective administrative sanctions available under the law 
for absconders after they are apprehended--other than merely 
executing the same removal order that they had successfully 
flouted for months or years. Even if such aliens are 
unsuccessful in obtaining the reopening of their previous final 
order, they may simply launch a new round of litigation before 
the Board and the courts.
    Section 209 would have provided more effective 
administrative tools to deter absconders from remaining in this 
country illegally and to prevent them from obtaining any 
further advantages after flouting their removal orders. It 
would have improved the bars on reentry by aliens ordered 
removed by closing a loophole allowing aliens to avoid these 
penalties by remaining unlawfully in the United States. Under 
section 209, the bars on admissibility would have applied once 
the alien is ordered removed--even if that alien had not yet 
departed. Similarly, the section would have barred aliens from 
future discretionary relief if they have absconded after 
receiving a final order of removal until they have left the 
United States and for 10 years thereafter. It also would have 
barred the granting of motions to reopen to aliens who had 
flouted their legal duty to depart from the United States under 
the final order of removal. By foreclosing future relief for 
aliens who fail to depart, the changes in section 209 would 
have increased the incentive for aliens to seek and to comply 
with removal orders.
    14. Section 210. Establishment of the Forensic Documents 
Laboratory. This section would have required the Secretary of 
Homeland Security to establish a Forensic Documents Laboratory 
to collect information on the production, sale, and 
distribution of fraudulent documents to be used to enter or 
remain in the U.S. unlawfully, to maintain that information in 
a database, to convert the information into reports to provide 
guidance to government officials, and to develop a system for 
distributing these reports to appropriate law enforcement 
agencies.
    15. Section 211. Section 1546 amendments. This section 
would have provided that a person who distributes forged or 
counterfeited visas or other entry documents or documents 
evidencing authorized stay or employment authorization was 
subject to the same criminal penalties as are those who forged 
or counterfeited the documents.
    16. Section 212. Motions to reopen or reconsider. This 
section would have clarified that the Board of Immigration 
Appeals' decisions on motions to reopen are discretionary 
decisions that are not subject to judicial review. The granting 
of motions to reopen and motions to reconsider are 
discretionary decisions under current DOJ regulations and have 
long been recognized as discretionary by the courts. When 
Congress enacted the current statutory provisions governing 
motions to reopen and to reconsider, however, Congress did not 
specifically provide that the grant or denial of such a motion 
is within the discretion of the Attorney General. The courts, 
therefore, have concluded that these discretionary decisions by 
the Attorney General and his delegates (the immigration judges 
and the Board of Immigration Appeals) are subject to judicial 
review. Judicial review of denials of such motions has 
contributed to the explosion in immigration litigation in the 
federal courts. This section would have corrected this problem. 
It also would have provided that an alien could file an 
additional motion to reopen a removal proceeding if DHS sought 
to remove the alien to an alternative or additional country and 
the alien made a prima facie case that the alien was entitled 
to withholding of removal or protection under the Convention 
Against Torture with respect to that country.
    17. Section 213. Reform of passport, visa, and immigration 
fraud offenses. This section would have updated the criminal 
code provisions criminalizing passport and immigration fraud in 
order to increase penalties and to facilitate effective 
enforcement. Provisions in this section would also have 
penalized fraud against aliens applying for immigration 
benefits. Immigration and passport fraud is widespread, 
increasingly organized, and highly profitable. Current 
provisions are insufficient to deal with these crimes: 
sentences are too light, the elements of the offenses are 
poorly worded, and no special penalties are provided for those 
who traffic in passports or immigration documents. This 
revision would have addressed these problems. The revision 
would also have created a new crime of defrauding aliens--a 
major hole in existing law.
    18. Section 214. Criminal detention of aliens. This section 
would have provided that criminal defendants' immigration 
status would be an express consideration in determining whether 
the defendants should be released on bond. Federal law 
currently makes no mention of immigration status as a 
consideration in pretrial detention determinations. As a 
result, the detention of aliens charged with crimes is uneven, 
and some courts release aliens who lack lawful status and face 
certain removal even if they are acquitted. The section would 
have created a rebuttable presumption of detention for alien 
defendants who (1) had no status, (2) had an outstanding order 
of removal, or (3) were charged with a serious immigration 
offense.
    19. Section 215. Uniform statute of limitations for certain 
immigration, naturalization, and peonage offenses. This section 
would have extended the statute of limitations for all 
immigration-related fraud to 10 years. Currently, the 
limitations period is five years for some immigration crimes 
(such as immigration and visa fraud) but 10 years for others 
(including passport and naturalization fraud). This disparity, 
which restricts the government's ability to prosecute numerous 
immigration frauds and alien smuggling cases, is of particular 
concern in the national security arena, where the authorities 
often uncover serious fraud committed outside the currently 
applicable limitations period.
    20. Section 217. Inadmissibility for passport and 
immigration fraud. Currently, convictions for all passport 
offenses do not make an alien automatically subject to 
exclusion, and a conviction for immigration fraud makes an 
alien automatically removable but not necessarily excludable. 
This section would have made any conviction for passport fraud, 
visa fraud, or immigration fraud a ground of exclusion 
regardless of when the offense was committed.
    21. Section 218. Removal for passport and immigration 
fraud. This section would have made changes similar to those in 
section 217--all passport, immigration, and visa fraud 
violations under chapter 75 of Title 18 grounds would have been 
made grounds of removability.
    22. Section 219. Reduction in immigration backlog. This 
section would have required that within six months of 
enactment, USCIS undertake maximum efforts to reduce to the 
greatest extent practicable the backlog in its processing and 
adjudicative functions. The agency may have implemented a pilot 
program to reduce the backlog of unadjudicated applications for 
immigration benefits.
    23. Section 220. Federal affirmation of assistance in the 
immigration law enforcement by states and political 
subdivisions of states. This section would have reaffirmed the 
inherent authority of states and local law enforcement to 
investigate, identify, apprehend, arrest, detain, and transfer 
to federal custody aliens in the U.S. in order to assist in the 
enforcement of the immigration laws. At the present time, there 
are only about 2,000 Special Agents to locate and arrest the 
entire illegal alien population. This provision would have made 
crystal clear that local and state officers who were willing to 
do so could act as a force multiplier for those 2,000 agents.
    24. Section 221. Training of State and local law 
enforcement personnel relating to the enforcement of 
immigration laws. This section would have required DHS to 
establish a training manual for state and local law enforcement 
personnel wishing to assist in the enforcement of the 
immigration laws. DHS would have had to make training available 
to state and local law enforcement personnel through multiple 
means, including by e-learning.
    25. Section 222. Financial assistance to state and local 
police agencies that assist in the enforcement of immigration 
laws. This section would have authorized $250 million annually 
in grants to states and localities for procurement of necessary 
items to facilitate their assistance in enforcing the 
immigration laws.
    26. Section 223. Institutional Removal Program (IRP). This 
section would have expanded to all states the Institutional 
Removal Program, under which removable aliens are identified 
while serving their prison sentences so that their removal 
proceedings can take place during their incarceration and they 
can be deported expeditiously once they have finished serving 
their sentences. The section would have required that states 
receiving federal funds in compensation for the cost of 
incarcerating illegal aliens had to cooperate with the IRP 
program. The section also would have authorized states to 
detain aliens who had served their sentences until they could 
be taken into custody by ICE. Finally, the section would have 
authorized funds to carry out the IRP.
    27. Section 224. State Criminal Alien Assistance Program 
(SCAAP). This section would have provided an indefinite 
authorization for the State Criminal Alien Assistance Program 
(which reimburses states for the cost of incarcerating illegal 
aliens) of $1 billion per year.
    28. Section 225. State authorization for assistance in the 
enforcement of immigration laws encouraged. This section would 
have provided that states and localities that prohibited their 
law enforcement officers from assisting and cooperating with 
federal immigration law enforcement were ineligible for funds 
under the SCAAP program.
    29. Section 308. Communication Between government agencies 
and the Department of Homeland Security. Section 642 of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 
1996 provided that no state or local governmental entity or 
official could prohibit or restrict their employees from 
communicating with the INS regarding the immigration status of 
any individual. Many localities have been openly violating this 
law, and thus inhibiting the ability of the federal government 
to gain control over illegal immigration and deal effectively 
with criminal aliens. This section would have provided an 
enforcement mechanism for section 642 by stipulating that any 
state or local government entity in violation of section 642 
would be ineligible for law enforcement grant programs carried 
out by the Department of Justice.
    30. Section 401. Mandatory detention for aliens apprehended 
at or between ports of entry. This section would have required 
the Department of Homeland Security by October 1, 2006, to 
detain all aliens apprehended at ports of entry or along the 
international land and maritime borders of the United States 
until they were removed from the United States or a final 
decision granting their admission had been determined. The only 
exceptions to mandatory detention would have been if the alien 
had departed immediately, such as Mexican nationals who were 
voluntarily returned across the border, and those paroled due 
to urgent humanitarian reasons or significant public benefit. 
This would have ended the long-time''revolving door'' whereby 
illegal aliens from countries other than Mexico were caught 
trying to illegally enter the U.S. and promptly released with 
the hope that they would appear for their immigration court 
hearing months hence. As noted earlier, the Department of 
Justice's Office of the Inspector General found that the INS 
was only able to remove 13% of nondetained aliens with final 
orders of removal. In 2005, 120,000 of the 160,000 ``other-
than-Mexicans'' apprehended along the border were released. The 
Department of Homeland Security is currently trying to end the 
revolving door policy through expedited removal and increased 
use of detention for non-Mexicans caught along the border.
    31. Section 402. Expansion and effective management of 
detention facilities. This section would have required the 
Secretary of Homeland Security to fully utilize all bed space 
owned and operated by the Department to full capacity and to 
utilize all other possible options to cost effectively increase 
detention capacity including temporary facilities, contracting 
with state and local jails, and secure alternatives to 
detention.
    32. Section 403. Enhancing transportation capacity for 
unlawful aliens. This section would have authorized the 
Secretary to enter into contracts with private entities to 
provide secure domestic transportation of aliens apprehended at 
or between ports of entry from the custody of the Border Patrol 
to a detention facility.
    33. Section 404. Denial of admission to nationals of 
country denying or delaying accepting alien. Current law 
requires the Secretary of State to discontinue granting visas 
to nationals of countries that deny or unreasonably delay 
accepting the return of their nationals subject to deportation 
by the U.S. Because this punishment is so draconian--barring 
all nationals of a country from receiving visas--it is almost 
never used, despite the fact that a number of countries 
continue to refuse to accept the return of their nationals. 
This section would have added a more measured punishment that 
was more likely to be used--authorizing the Secretary of 
Homeland Security to deny admission to any national of a 
country that declined to accept the prompt repatriation of its 
nationals.
    34. Section 405. Report on financial burden of 
repatriation. This section would have required the Secretary to 
submit an annual report to the Secretary of State and the 
Committee on Homeland Security that detailed the costs to the 
Department of Homeland Security for repatriating aliens and 
provide recommendations to more cost effectively repatriate 
such aliens.
    35. Section 407. Expedited removal. By the mid-1990s, tens 
of thousands of aliens were arriving at U.S. airports each year 
without valid documents and making meritless asylum claims, 
knowing that they would be released into the community pending 
asylum hearings because of a lack of detention space. Few were 
ever heard from again. In response, the Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996 created the 
mechanism of ``expedited removal''. Under expedited removal, a 
DHS officer at a port-of-entry can immediately return an alien 
lacking proper documents to his or her country of origin unless 
the alien asks for asylum and can establish a ``credible fear'' 
of persecution. By fiscal year 2003, the INS was making over 
43,000 expedited removals per year and our airports were no 
longer being deluged. IIRIRA provided the Administration with 
the authority to utilize expedited removal in the case of any 
alien who had entered the U.S. illegally and had not been 
present here for two years. Until recently, the INS and DHS 
never made use of this power. Recently, the Administration has 
taken a tentative step towards using expedited removal along 
the southern border because of the large numbers of non-Mexican 
aliens who have been caught by the Border Patrol and then 
released into the United States because of a lack of detention 
space. Under the discretionary authority provided by IIRIRA, 
the Administration has been utilizing expedited removal against 
aliens who are apprehended within 100 miles of the border and 
14 days of unauthorized entry. Section 407 would have mandated 
the use of expedited removal in these instances.
    36. Section 408. GAO Study on deaths in custody. This 
section would have required the Government Accountability 
Office to submit within six months of enactment a report to 
Congress on the deaths in custody of detainees held on 
immigration violation by the Department of Homeland Security.
    37. Section 410. Listing of immigration violators in the 
National Crime Information Center Database. This section would 
have required that information regarding aliens subject to 
final removal orders, aliens who were unlawfully present 
because they had overstayed their period of authorized 
presence, and certain other aliens had been contained in the 
National Crime Information Center database.
    38. Section 601. Removal of terrorist aliens. Withholding 
of removal is a form of protection that, while similar to 
asylum, differs in two important respects: (1) it is 
nondiscretionary and (2) to receive this benefit, the alien 
must meet a higher standard of proof than asylum. Although 
aliens who pose a danger to the national security generally are 
barred from withholding of removal, aliens deportable on 
terrorist grounds are not expressly barred from such relief. As 
is apparent from the 9/11 Commission's staff report on 
terrorist travel, terrorist aliens have abused our humanitarian 
benefits to remain in the United States. First World Trade 
Center bomber Ramzi Yousef, the Blind Sheikh, and Mir Kansi, 
who killed two in front of the CIA, all made claims to asylum 
to remain in the United States. Congress has barred terrorist 
aliens from receiving asylum, but the bars to terrorist aliens 
receiving withholding of removal are less clear. Under the INA, 
aliens are currently only barred from withholding if there are 
reasonable grounds to believe that they are a danger to the 
security of the United States. While the INA makes clear that 
aliens described in a provision of the INA that renders 
deportable aliens who have engaged in any terrorist activity 
``shall be considered to be . . . alien[s] with respect to whom 
there are reasonable grounds for regarding as a danger to the 
Security of the United States'', this has led to claims by 
aliens with terrorist ties that they are not a danger to the 
security of the U.S., and thus still eligible for withholding.
    Section 601 would have barred all aliens described in the 
terrorist grounds of inadmissibility from eligibility for 
withholding of removal, with two exceptions. Under the 
exceptions, DHS would have had the sole discretion to determine 
that representatives of terrorist groups, and the spouses and 
children of aliens who would themselves have been barred on 
terrorist grounds, were not a danger to the national security 
and were not barred from such relief.
    39. Section 602. Detention of dangerous aliens. In the 2001 
decision of Zadvydas v. Davis, the Supreme Court ruled that 
under current law, aliens who had been admitted to the U.S. and 
then ordered removed could not be detained for more than six 
months if for some reason they could not be removed. Then, in 
Clark v. Martinez, the Court dealt with two Cubans who came to 
the U.S. during the Mariel boatlift and later committed crimes 
including assault with a deadly weapon, attempted sexual 
assault, and armed robbery. The Court expanded its decision in 
Zadvydas to apply to such nonadmitted aliens. Based on the two 
decisons, the Justice Department and the Department of Homeland 
Security have had no choice but to release back onto the 
streets many hundreds of criminal aliens. Jonathan Cohn, Deputy 
Assistant Attorney General, has testified that ``the government 
is [now] required to release numerous rapists, child molesters, 
murderers, and other dangerous illegal aliens into our streets. 
. . . [V]icious criminal aliens are now being set free within 
the U.S.'' Cohn referenced the release of aliens including 
murderers, a schizophrenic sex offender and pedophiles. Many of 
these aliens were Mariel Cubans released from Cuban jails or 
aliens who have received relief from removal pursuant to the 
Convention Against Torture, which prohibits the return of an 
alien to a country where there are substantial grounds for 
believing that he or she would be in danger of being tortured. 
Almost 900 criminal aliens ordered removed have received CAT 
relief and have subsequently been released into our communities 
pursuant to the decisions. This includes at least one alien who 
was implicated in a mob-related quintuple homicide in 
Uzbekistan. Also, one alien removable on terrorism grounds has 
been released after receiving CAT protection. One of the aliens 
released has subsequently been arrested for shooting a New York 
State trooper in the head.
    Section 602 would have allowed DHS to detain specified 
dangerous aliens under orders of removal who could not be 
removed. The section would have authorized DHS to detain aliens 
who were stopped at the border beyond six months. The section 
would also have authorized DHS to detain aliens who effected an 
entry beyond six months, but only if (1) the alien would have 
been removed in the reasonably foreseeable future, (2) the 
alien would have been removed but for the alien's refusal to 
make all reasonable efforts to comply and cooperate with the 
Secretary's efforts to remove him, (3) the alien had a highly 
contagious disease, (4) release would have had serious adverse 
foreign policy consequences, (5) release would have threatened 
national security, or (6) release would have threatened the 
safety of the community and the alien either was an aggravated 
felon or was mentally ill and had committed a crime of 
violence. Such aliens could have been detained for periods of 
six months at a time, and the period of detention could have 
been renewed. The section also would have provided for judicial 
review of detention decisions in the United States District 
Court for the District of Columbia.
    40. Section 603. Increase in criminal penalties. This 
section would have increased penalties and set mandatory 
minimum sentences for aliens who failed to depart when ordered 
removed or obstructed their removal, or who failed to comply 
with the terms of release pending removal.
    41. Section 604. Precluding admissibility of aggravated 
felons and other criminals. In the INA, the most serious 
criminal offenses are deemed aggravated felonies. A conviction 
for an aggravated felony can have significant consequences for 
an alien. Such an offense requires the removal of an admitted 
alien and bars him from most forms of relief, and also subject 
an alien to an increased sentence for certain crimes. However, 
under current law a conviction for an aggravated felony is not, 
per se, a ground of inadmissibility. For this reason, an 
aggravated felony conviction will not render an alien 
inadmissible under section 212(a)(2) of the INA unless the 
conviction also falls within one of the existing criminal 
grounds of inadmissibility, such as a crime involving moral 
turpitude, or a controlled substance or money laundering 
offense. Section 604 would have barred aggravated felons from 
admission and from receiving discretionary waivers of 
inadmissibility under section 212(h) of the INA. This would 
have corrected an anomaly under current law by which aliens 
with aggravated felony convictions who were present illegally 
could receive waivers under that provision, while lawful 
permanent resident aliens could not.
    Section 604 also would have applied the domestic violence 
ground of deportability to inadmissibility. This would have 
prevented aliens who had been convicted of crimes of domestic 
violence, stalking, child abuse and child neglect from entering 
and remaining in the United States. Finally, section 604 would 
have amended the inadmissibility grounds to bar the admission 
of aliens who had committed or been convicted of crimes 
relating to social security fraud or the unlawful procurement 
of citizenship.
    42. Section 605. Precluding refugee or asylee adjustment of 
status for aggravated felons. In various statutory enactments 
since 1988, Congress has attached a series of stringent 
restrictions on the eligibility of aliens to obtain almost all 
forms of discretionary immigration relief after they have been 
convicted of an aggravated felony. In particular, under the 
asylum provisions, an alien convicted of an aggravated felony 
is conclusively barred from being granted asylum, and a grant 
of asylum may be terminated if it is determined that the alien 
has become subject to one of the mandatory bars to asylum, 
including because an asylee has been convicted of an aggravated 
felony. However, the provision governing asylee and refugee 
adjustment to permanent resident status does not expressly bar 
an applicant from obtaining adjustment where the alien has been 
convicted of an aggravated felony after obtaining refugee or 
asylee status. Not only is this inconsistent with statutory 
bars on almost all discretionary immigration relief for 
aggravated felons, it is also inconsistent with the treatment 
that the asylee or refugee would be accorded after adjustment. 
Specifically, an alien who has been granted refugee or asylee 
adjustment is barred from obtaining cancellation of removal, a 
waiver under section 212(h) of the INA, or section 212(c) 
relief from removal if the alien is convicted of an aggravated 
felony after attaining such status. Section 605 would have 
corrected this discrepancy by barring asylees and refugees 
convicted of aggravated felonies from adjustment.
    43. Section 606. Removing drunk drivers. The section would 
have provided that an illegal alien who was convicted of drunk 
driving or who refused to submit to a test to determine blood 
alcohol level was removable. Each state motor vehicle 
administrator would have had to share with DHS and other states 
information regarding any such alien, and would have been 
required to enter the information into the NCIC database. DHS 
would have been required to detain any illegal alien who was 
apprehended for drunk driving or for failing to take a test by 
a state or local government law enforcement officer covered by 
an agreement with DHS regarding state and local law enforcement 
assistance in enforcing the immigration laws. Finally, the 
section would have required law enforcement officers who 
apprehended persons for drunk driving and had a reasonable 
belief that they were aliens to check to see whether they were 
present illegally, and to keep them in custody in certain 
circumstances.
    44. Section 607. Designated county law enforcement 
assistance program. Section 607 would have authorized local 
sheriffs in the 29 counties along the southern border to 
transfer illegal aliens they had arrested to federal custody. 
It also would have reimbursed those Sheriffs for costs 
associated with detaining illegal aliens they arrested until 
they were able to hand them over to federal authorities. The 
section would have deemed aliens in Sheriffs' custody to be in 
federal custody once determined to be unlawfully present.
    45. Section 608. Rendering inadmissible and deportable 
aliens participating in criminal street gangs; detention; 
ineligibility from protection from removal and asylum. Crime by 
alien members of criminal street gangs is exploding. Former ICE 
Assistant Secretary Mike Garcia has stated: ``In the last 
decade, the United States has experienced a dramatic increase 
in the number and size of transnational street gangs. . . . 
These gangs have a significant, often a majority, foreign-born 
membership . . . .'' Entire neighborhoods and sometimes whole 
communities are held hostage by and subjected to the violence 
of street gangs. Currently, however, aliens who are members of 
criminal street gangs are not deportable or inadmissible, and 
can receive asylum and TPS (temporary protected status), until 
they are convicted of a specified criminal act. Many of the 
members in the United States of these gangs are present in the 
U.S. under TPS. One of the most violent and fastest-growing 
gangs, Mara Salvatrucha-13, was formed by Salvadorans who 
entered the U.S. during the civil war in El Salvador in the 
1980s, and has an estimated 8,000 to 10,000 members of MS-13 in 
31 states. The gang is estimated to have as many as 50,000 
members internationally. There have been 18 MS-13-related 
killings in North Carolina, 11 in Northern Virginia, and at 
least eight in Los Angeles in the past two years.
    Section 608 would have rendered alien gang members 
deportable and inadmissible, mandated their detention, and 
barred them from receiving asylum or TPS. The section would 
have adopted procedures similar to those used by the State 
Department to designate foreign terrorist organizations, to 
enable the Attorney General to designate criminal street gangs 
for purposes of the immigration laws. ``Criminal street gangs'' 
would have been defined as ``a formal or informal group or 
association of three or more individuals, who commit two or 
more gang crimes (one of which is a crime of violence . . .) in 
two or more separate criminal episodes, in relation to the 
group or association.'' ``Gang crime'' would have been defined 
as ``conduct constituting any Federal or State crime, 
punishable by imprisonment for one year or more'' in various 
categories, including crimes of violence, obstruction of 
justice, witness tampering, burglary, and drug trafficking. 
Tracking the procedures that allow the Secretary of State to 
designate foreign terrorist organizations in section 219 of the 
INA, the section would have given the Attorney General 
authority to designate groups and associations as ``criminal 
street gangs.''
    46. Section 609. Naturalization reform. Alien terrorists 
are deportable and are also barred from admission and most 
other forms of immigration relief. However, there are no 
express bars for terrorists from being naturalized, the most 
significant benefit that the United States can bestow on an 
alien. Section 609 would have closed this loophole and barred 
alien terrorists from naturalization.
    Section 609 would also have corrected other discrepancies 
in the naturalization law. When INS was given authority to 
grant naturalization, INS was precluded from granting that 
benefit as long as the applicant was in removal proceedings. 
That preclusion did not, however, apply to district courts, 
which retained part of their historic authority over 
naturalization. Section 609 would have corrected this 
incongruity by barring district court consideration of 
naturalization applications while the applicant was in removal 
proceedings. Section 609 would also have held in abeyance 
petitions to grant status for relatives filed by individuals 
who were, themselves, facing denaturalization or removal.
    Currently, aliens can go to district court if their 
naturalization applications have been pending with DHS for more 
than 120 days. Section 209 would have given DHS 180 days to 
adjudicate these applications, and limited District Court 
relief to remand for adjudication by DHS, making the provision 
more in line with traditional mandamus actions. Finally, the 
section would have limited court review of DHS's findings with 
respect to whether a naturalization applicant had good moral 
character, whether the alien understood and was attached to the 
principles of the Constitution, and was well disposed to the 
good order and happiness of the United States.
    47. Section 610. Expedited removal for aliens inadmissible 
on criminal or security grounds. This section would have 
allowed DHS to use the same expedited procedures that are 
available for the removal of aggravated felons to remove other 
inadmissible criminal aliens who were not permanent residents 
and were otherwise ineligible for relief. At the present time, 
these aliens must be placed in lengthy removal proceedings 
before an immigration judge despite the fact that they are not 
eligible for any relief.
    48. Section 611. Technical correction for effective date in 
change in inadmissibility for terrorists under REAL ID Act. 
Section 103 of the REAL ID Act was designed to ensure the 
removal of aliens tied to terrorist organizations. However, 
aliens currently in deportation proceedings initiated before 
the effective date of the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996 have claimed that the REAL 
ID Act does not apply to them. Section 611 would have clarified 
that the amendments in the terrorist grounds of removal in the 
REAL ID Act were to be applied to aliens in all removal, 
deportation, and exclusion cases, regardless of when those 
cases were initiated.
    49. Section 612. Bar to good moral character. Applicants 
for certain immigration benefits, including naturalization, 
voluntary departure, and cancellation of removal, must 
demonstrate ``good moral character,'' as defined in the INA. At 
present, although the definition excludes (among others) 
``habitual drunkards'' and gamblers, it does not expressly 
exclude aliens who are terrorists or aiders or supporters of 
terrorism. Section 612 would have corrected this discrepancy by 
barring terrorist aliens from showing good moral character. In 
addition, because the definition of ``good moral character'' in 
the INA does not, and could never, cover all situations in 
which applicants could be shown not to have good moral 
character, this provision would have given the Secretary of 
Homeland Security and the Attorney General discretionary 
authority to make a good moral character determination in 
situations not specifically set forth by the definition. The 
section would have clarified that the aggravated felony bar to 
good moral character applied regardless of when the crime was 
classified as an aggravated felony and clarified the 
discretionary authority of DHS to find an alien not to be of 
good moral character could be based upon actions that did not 
occur within the requisite period of time for which good moral 
character must have been established.
    50. Section 613. Strengthening definitions of ``aggravated 
felony'' and ``conviction''. The ``aggravated felony'' 
definition in the INA covers both murder and crimes of violence 
for which the term of imprisonment is at least one year, but 
significantly, it does not specifically include manslaughter 
and homicide. Many aliens accused of murder, however, will 
plead to these lesser offenses. Section 613 would have ensured 
that all aliens who had taken the life of another were covered 
by the ``aggravated felony'' definition. In addition, while the 
sexual abuse of a minor is an aggravated felony, proof in such 
cases can be limited where the victim was a minor, but the 
offense does not list the alien's minority status as an 
element. Section 613 would have allowed extrinsic evidence to 
be offered to establish the minority of the victim in a sexual 
abuse case. The section also would have prevented state courts 
from interfering in federal immigration law by reversing or 
vacating convictions after they had been entered in order to 
forestall removal. Some state courts have granted requests by 
criminal aliens to revise their sentences and convictions to 
allow them to avoid the immigration consequences of their acts, 
and have even granted these requests after aliens have served 
their sentences. Section 613 would have made it clear that 
immigration consequences would continue to attach to 
convictions that had been the subject of post-judicial 
amendment unless that amendment occurred because the alien was 
not guilty of the offense.
    51. Section 614. Deportability for criminal offenses. This 
section would have rendered removable aliens who had unlawfully 
procured citizenship as well as aliens convicted of offenses 
relating to misuse of Social Security numbers and cards and 
fraud in connection with identification documents.
    52. Section 616. Report on criminal alien prosecution. This 
section would have required the Attorney General to submit to 
Congress an annual report on the status of criminal alien and 
smuggling prosecutions.
    53. Section 617. Determination of immigration status of 
individuals charged with federal offenses. This section would 
have required federal prosecutors to identify at the time of 
filing whether alien defendants were lawfully present in the 
United States, and required records of the U.S. courts to 
reflect whether a defendant was an illegal alien. This is 
needed because the growing volume of federal criminal cases 
involving illegal aliens need to be better documented, and 
because this bill would have made illegal presence a federal 
crime to be prosecuted in the federal courts.
    54. Section 618. Increased criminal penalties for document 
fraud and crimes of violence. One of the primary mechanisms for 
the flagrant abuse of our immigration laws is the use of 
counterfeited immigration documents, the perpetration of 
identity fraud, and lying under oath in immigration 
applications. This section would have significantly 
strengthened criminal penalties for all of these crimes. The 
section also would have provided that if an illegal alien 
committed a violent crime or a drug trafficking offense, that 
the alien should receive a criminal sentence at least five 
years longer than he or she would have received otherwise. If 
such an illegal alien had been previously ordered deported for 
having committed another crime, the alien would receive a 
sentence at least 15 years longer than he or she would have 
received otherwise.
    55. Section 619. Laundering of monetary instruments. 
International traffickers and smugglers of human beings are the 
most barbaric of immigration violators. They force women and 
children into sexual slavery and aliens into indentured 
servitude. They place their human cargo in extremely dangerous 
circumstances and often abandon them and leave them to die in 
the rugged terrain along much of our southwestern border. This 
section would have ensured that federal authorities could use 
all the powerful tools of our money laundering statutes against 
the money laundering activities that these persons engaged in 
as part of their criminal enterprises.
    56. Sections 701-708 ``Employment eligibility 
verification''. The Immigration Reform and Control Act of 1986 
made it unlawful for employers to knowingly hire or employ 
aliens not eligible to work and required employers to check the 
identity and work eligibility documents of all new employees. 
The Act was designed to end the ``job magnet'' that draws the 
vast majority of illegal aliens to the United States. Under 
IRCA, if the documents provided by an employee reasonably 
appear on their face to be genuine, an employer has met its 
document review obligation. Unfortunately, the easy 
availability of counterfeit documents has made a mockery of 
IRCA. Fake documents are produced by the millions and can be 
obtained cheaply. Thus, the current system both benefits 
unscrupulous employers who do not mind hiring illegal aliens 
but want to show that they have met legal requirements and 
harms employers who don't want to hire illegal aliens but have 
no choice but to accept documents they know have a good 
likelihood of being counterfeit.
    In the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996, Congress responded to the 
deficiencies of IRCA by establishing three employment 
eligibility verification pilot programs for volunteer employers 
in selected states. Under the basic pilot program, the Social 
Security numbers and alien identification numbers of new hires 
are checked against Social Security Administration and 
Department of Homeland Security records in order to weed out 
fraudulent numbers and thus to ensure that new hires are 
genuinely eligible to work. A 2001 report on the basic pilot 
program found that ``an overwhelming majority of employers 
participating found the basic pilot program to be an effective 
and reliable tool for employment verification''--96% of 
employers found it to be an effective tool for employment 
verification; and 94% of employers believed it to be more 
reliable than the IRCA-required document check. In 2003, 
Congress extended the basic pilot program for another five 
years and made it available to employers nationwide.
    The basic pilot works as follows:
          
 An employer has three days from the date of 
        hire to make an inquiry by phone or other electronic 
        means to the confirmation office. If the new hire 
        claims to be a citizen, the employer will transmit his 
        or her name and Social Security number. If the new hire 
        claims to be a non-citizen, the employer will transmit 
        his or her name, alien identification number and Social 
        Security number.
          
 The confirmation office will compare the 
        name and Social Security number provided against 
        information contained in Social Security Administration 
        records and, if necessary, will compare the name and 
        DHS-issued number provided against information 
        contained in DHS records.
          
 If in checking the records, the confirmation 
        office ascertains that the new hire is eligible to 
        work, the operator will within three days so inform the 
        employer. If the confirmation office cannot confirm the 
        work eligibility of the new hire, it will within three 
        days so inform the employer of a tentative 
        nonconfirmation.
          
 If a new hire does not contest the tentative 
        nonconfirmation, it shall be considered a final 
        nonconfirmation. If a new hire wishes to contest the 
        tentative nonconfirmation, secondary verification will 
        be undertaken. Secondary verification is an expedited 
        procedure set up to confirm the validity of information 
        contained in the government records and provided by the 
        new hire. Under this process, the new hire will 
        typically contact or visit the SSA and/or DHS to see 
        why the government records disagree with the 
        information he or she has provided. If the new hire 
        requests secondary verification, he or she cannot be 
        fired on the basis of the tentative nonconfirmation.
          
 If the discrepancy can be reconciled within 
        ten days, then confirmation of work eligibility will be 
        given to the employer by the end of this period. If the 
        discrepancy cannot be reconciled within ten days, final 
        denial of confirmation will be given by the end of this 
        period. The employer then has two options. It can 
        dismiss the new hire as being ineligible to work in the 
        United States or it can continue to employ the new 
        hire. If the employer continues to employ the new hire, 
        it must notify DHS of this decision or be subject to 
        penalty. If legal action is brought by the government 
        subsequent to such notification, the employer is then 
        subject to a rebuttable presumption that it has 
        knowingly hired an illegal alien.
    Title VII would have made participation in the basic pilot 
program mandatory for all employers within two years of 
enactment. It would also have expanded the system to provide 
for verification of previously hired employees. Employers would 
have been able to use the system to verify previously hired 
employees on a voluntary basis (as long as they did not do so 
in a discriminatory manner) two years after enactment. By three 
years after enactment, federal, state, and local governments 
and the military would have been required to verify the 
employment eligibility of all workers who had not been 
previously subject to verification under the system, as would 
have been other employers for those employees working at 
federal, state or local government buildings, military bases, 
nuclear energy sites, weapons sites, airports, and critical 
infrastructure sites. By six years after enactment, all 
employers would have been required to verify the employment 
eligibility of all workers who had not been previously subject 
to verification under the system.
    The title would have required DHS to investigate situations 
in which a social security number was submitted more than once 
by the same employer, or where a social security number was 
submitted by multiple employers, in a manner that suggested 
fraud. The title exempted employers from liability who relied 
in good faith on information provided by the verification 
system. The title would have applied employment eligibility 
verification requirements to ``day labor'' sites (and would 
have prohibited localities from requiring businesses to set up 
day labor sites as a condition for conducting or expanding 
their business). The title would have established civil 
penalties for failure to comply with the employment eligibility 
verification requirements and would have increased civil 
penalties for knowingly hiring or employing aliens ineligible 
to work or for failing to comply with the I-9 process.
    The title would have required the Social Security 
Administration to conduct a study on the cost and 
administrability of the elements of Representative David 
Dreier's ``Illegal Immigration Enforcement and Social Security 
Protection Act of 2005'' (H.R. 98)--which would have required 
hardened, secure Social Security cards with an electronic strip 
and digital photograph, the creation of a unified database 
between SSA and DHS for employment eligibility verification, 
and employers to verify employment eligibility verification of 
new hires by swiping the secure social security card through an 
electronic card-reader.
    57. Section 801. Board of Immigration Appeals removal order 
authority. The Ninth Circuit has given aliens additional 
opportunities to needlessly hinder their removal by requiring 
the Board of Immigration Appeals to remand cases in which it 
has reversed an immigration judge decision granting an alien 
relief back to the IJ for entry of the order of removal. 
Section 801 would have expressly provided the BIA authority to 
reverse an IJ decision and enter an order of removal without 
remanding to the IJ.
    58. Section 802. Judicial review of visa revocation. The 
INA allows consular officers to revoke visas after they have 
been issued. However, prior to enactment of the Intelligence 
Reform and Terrorism Prevention Act of 2004, if a visa was 
revoked after an alien entered the United States, the alien was 
allowed to remain in the United States under the terms of 
admission since there existed no ground of removal for visa 
revocation. Section 5304 of the Intelligence Reform Act created 
a ground of removal for aliens whose visas were revoked after 
entry. This was spurred by a GAO investigation that revealed 
that the absence of such a ground posed a risk to the American 
people. In October 2002, GAO reported that the State Department 
had revoked 105 visas that had been erroneously issued to 
aliens, about whom there were questions about possible terror 
ties, before their background checks had been completed. GAO 
found that immigration agents did not attempt to track down 
those aliens whose visas had been revoked because of the 
difficulty in removing those aliens from the United States. 
DHS's inability to remove aliens after their visas are revoked 
is especially problematic in terrorism cases, because 
information linking an alien to terrorism is often classified 
and classified information cannot be used to prove 
deportability. The House acted to close this loophole in the 
Intelligence Reform Act by adding a provision to make visa 
revocation a freestanding ground of removal. However, in 
conference a modification was added stating that visa 
revocation decisions would be judicially reviewable if 
revocation was the sole basis for the order of removal under 
review. This change has rendered the revocation ground of 
removal worthless as a removal tool. Not only could such review 
disclose the sensitive information that the revocation ground 
of removal is intended to protect, but it would also undermine 
the consular nonreviewability doctrine, and allow courts to 
second-guess all visa denial decisions. Accordingly, section 
802 would have removed the judicial review provision added in 
the conference.
    59. Section 803. Reinstatement. Section 241 of the INA 
provides that the government may remove an alien who has 
reentered the country illegally after being removed, pursuant 
to the prior order of removal. This provision is meant to 
preserve judicial resources, and to close the revolving door of 
illegal reentry by allowing DHS to summarily deport aliens who 
have reentered after removal, without having to obtain a new 
removal order from an Immigration Judge. In accordance with 
section 241, DHS has promulgated a regulation that permits 
reinstatement of removal orders by DHS officers. However, the 
Ninth Circuit has recently invalidated DHS's regulation and 
held that aliens are entitled to have their reinstatement cases 
adjudicated by immigration judges. In fiscal year 2004, prior 
to the Ninth Circuit's decision, DHS removed 42,886 aliens in 
that circuit through reinstatement. Under the Ninth Circuit's 
decision, Immigration Judges now must hear tens of thousands of 
additional cases annually from aliens ineligible for relief. 
This is a waste of extremely limited resources. Section 803 
would have overruled the Ninth Circuit decision, validated 
DHS's regulation, and allowed the department to deport an alien 
who reentered illegally after being removed without having had 
to again place the alien in removal proceedings.
    60. Section 804. Withholding of removal. Section 101(a)(3) 
of the REAL ID Act required an asylum applicant to show that 
one of the five protected characteristics--race, religion, 
political opinion, nationality, or membership in a particular 
social group--``was or will be at least one central reason'' 
why the alien was persecuted or fears persecution and thereby 
is eligible for asylum. Section 804 would have clarified that 
the REAL ID motivation standard for asylum also applied to 
withholding of removal. Unless this clarification is made, 
applicants for withholding, who have traditionally borne a 
higher burden than applicants for asylum, now will be found to 
have a lesser burden.
    61. Section 805. Certificate of reviewability. There has 
been an explosion in the number of petitions for review filed 
in the courts of appeals from immigration decisions in the past 
few years. In fiscal year 2001, there were 1,654 such petitions 
filed. By 2004, 10,681 immigration petitions for review were 
filed. The vast majority of these petitions, once reviewed, are 
denied. In 2004, for example, the Board of Immigration Appeals' 
determinations were sustained by the courts in over 90% of the 
cases decided, a rate that has actually increased since the 
Board adopted its ``streamlining'' reforms in 2002. Section 805 
would have responded to the filing of meritless appeals of 
removal orders by establishing a screening process for aliens' 
appeals of BIA decisions. Under this provision, appeals would 
have been referred to a single circuit court judge for initial 
review. If that judge decided that the alien had made a 
substantial showing that the alien's petition for review was 
likely to be granted, the judge would have issued a 
``certificate of reviewability'' allowing the case to proceed 
to a three-judge panel. The provision would have focused 
limited judicial resources on those petitions for review with 
the greatest likelihood of proving meritorious.
    62. Section 806. Waiver of rights in nonimmigrant visa 
issuance. Currently, aliens seeking to enter the United States 
under the visa waiver program must waive access to Immigration 
Court to challenge removal by any means other than asylum. No 
similar restriction is placed on the other nonimmigrants who 
are admitted annually. Section 806 would have imposed the same 
review conditions on all nonimmigrant visas that now apply only 
to visa waiver admissions, and would have required aliens 
seeking to enter temporarily to waive their ability to contest, 
other than through asylum, any action to deny them admission or 
remove them.
    63. Section 807. Clarification of Jurisdiction of Review. 
This section would have clarified and reaffirmed existing 
limits on federal courts' jurisdiction to review removal orders 
pertaining to certain criminal aliens as well as to 
discretionary decisions by the Attorney General and Secretary 
of Homeland Security. These provisions would have overturned a 
series of erroneous Ninth Circuit decisions asserting 
jurisdiction where none exists under current law. Consistent 
with Congress's intent in enacting the 1996 reforms, the 
provisions would have made clear that the federal courts could 
not delay the removal of thousands of illegal aliens by 
asserting jurisdiction over the purely discretionary decisions 
of the Attorney General or the Secretary of Homeland Security; 
nor could they assert jurisdiction over factual questions, such 
as those relating to criminal aliens, that Congress had 
expressly deemed unreviewable.
    64. Section 808. Fees and Expenses in Judicial Proceedings. 
This section would have clarified the Equal Access to Judgment 
Act to limit an alien's collection of attorney's fees from 
agency budgets to situations where the alien had prevailed on 
the question of removability. Aliens have been permitted in at 
least three circuits to recover attorneys' fees as the 
prevailing party on petitions for review, even when they have 
secured only a remand to the Board and are still potentially 
subject to removal. These fee awards are considerable often 
exceeding $10,000. If unchecked, substantial DHS financial 
resources will have to be expended on alien's attorney's fees, 
rather than homeland security. EAJA litigation has added to the 
overwhelming caseload of government immigration attorneys. 
Abolishing EAJA fee awards in immigration cases for aliens who 
are removable would reverse these effects without impairing the 
rights of citizens and lawful permanent residents who find 
themselves wrongly placed into deportation proceedings.
    65. Section 1004. Sense of the Congress. This section would 
have stated the sense of Congress that DHS should have taken 
all necessary steps to secure the southwest border.
    66. Section 1102. Elimination of diversity immigrant 
program. This section would have ended the diversity visa 
program, under which up to 50,000 randomly selected alien 
applicants win immigrant visas each year. Public scrutiny was 
drawn to the diversity visa program, also known as the ``visa 
lottery,'' in the late summer and early fall of 2002 when it 
came to light that Hesham Hedayet, who killed two during a 
shooting spree at Los Angeles International Airport on July 4, 
2002, received permanent residence under the program. There are 
various shortcomings and dangers posed by the visa lottery:
        
 The visa lottery is susceptible to fraud. In 
        fact, some have argued, the very laxity of its 
        structure invites fraudulent applications.
        
 The lottery fails to advance any of the 
        primary goals of our immigration system, in that it 
        does not serve any humanitarian benefit, to unite 
        families, or to provide skilled workers for the 
        American economy. When tens of millions of persons seek 
        to come to America, it makes no sense to distribute 
        precious visas by lottery.
        
 Some have also termed the visa lottery unfair 
        because winners go ahead of the spouses and children of 
        lawful permanent residents and married sons and 
        daughters of citizens who have waited for visas, in 
        some instances, for years.
    The most significant danger posed by the program, however, 
is the risk that the visa lottery could be used by aliens who 
pose a danger to the American people. The State Department's 
Inspector General has testified that the lottery program 
``contains significant risks to national security from hostile 
intelligence officers, criminals, and terrorists attempting to 
use the program for entry into the United States as permanent 
residents.'' To a large extent, this is because winners of the 
lottery need have no ties whatsoever to America, neither family 
or employment ties.
    67. Section 1201. Oath of Renunciation and Allegiance. In 
2003, the Department of Homeland Security proposed changes to 
the oath which every naturalized citizen must take which would 
have significantly weakened the oath and demeaned its 
historical significance. Due to strong public opposition, those 
changes were never implemented. However, since the oath is not 
set forth in federal statute, but only in regulation, the 
agency can modify its language at any time in the future in a 
similarly inappropriate way. The oath is the fundamental 
statement of allegiance to the United States and our 
Constitution, and this allegiance is what unites Americans of 
all backgrounds. As the gateway into U.S. citizenship, the oath 
should be protected by Congress. This section would have 
provided that the current oath laid out in regulation could not 
be modified by DHS.
    68. Sections 1301-1310 ``Elimination of Corruption and 
Prevention of Acquisition of Immigration Benefits through 
Fraud''. These sections would have acknowledged that 
immigration fraud has become endemic and, even more seriously, 
that internal corruption at U.S. Citizenship and Immigration 
Services threatens the national security and erodes the 
integrity of our immigration system. The extent and seriousness 
of the problem was brought to light in a closed bipartisan 
session of the Subcommittee on Immigration, Border Security & 
Claims of the Judiciary Committee earlier this year. The 
serious allegations and investigations discussed there cannot 
be discussed in the open. However, the ease with which 
unscrupulous immigration officials can be tempted to issue 
visas or benefits in return for money, goods, or favors was 
brought to light a month ago with the issuance of a Government 
Accountability Office report on consular malfeasance. In that 
report, it was revealed that the Diplomatic Security Service 
had investigated 28 cases of visa selling by State Department 
employees in the last few years. Those were only the cases that 
were discovered in the some 200 consular sections located 
abroad. U.S.C.I.S. conducts its application processing in the 
United States, and yet thousands of allegations of misconduct, 
some involving criminal acts and foreign influence, have yet to 
be investigated because of lack of focus, resources, and 
confusion of sub-agency jurisdiction.
    These sections would have ensured that an internal law 
enforcement division within U.S.C.I.S. would receive, process, 
and investigate allegations of misconduct and internal 
corruption in a timely manner. The division would also have had 
authority to conduct immigration benefit fraud detection 
operations and the Director of the division would have had the 
authority to subpoena documents, reports, and data, and to 
appoint such officers as necessary to carry out the internal 
affairs functions. To fund this office, a $10 fee would have 
been charged to all visa applicants and applicants for 
adjustment of status and extensions of stay.
    Legislative History.--Chairman F. James Sensenbrenner, Jr., 
and Chairman Peter King of the Homeland Security Committee 
introduced H.R. 4437 on December 6, 2005. On December 8, 2005, 
the Judiciary Committee ordered H.R. 4437 reported as amended 
by a vote of 23-15. On December 13, 2005, the Judiciary 
Committee reported H.R. 4437 (H. Rept. 109-345, Part I). On 
December 16, 2005, the House passed H.R. 4437 as amended by a 
vote of 239-182. No further action was taken on H.R. 4437.

H.R. 4681, the Palestinian Anti-Terrorism Act of 2006

    Summary of provisions within the Jurisdiction of the 
Judiciary Committee.--The bill would have provided that with 
certain exceptions the U.S. government could only give 
assistance to the Palestinian Authority during a period for 
which a Presidential certification was in effect finding that 
(1) no ministry, agency, or instrumentality of the Authority 
was controlled by a foreign terrorist organization, (2) no 
member of a foreign terrorist organization served in a senior 
policy making position in a ministry, agency, or 
instrumentality of the Authority, (3) the Authority had 
publically acknowledged Israel's right to exist as a Jewish 
state, (4) the Authority had recommitted itself and is adhering 
to all previous agreements and understandings by the Palestine 
Liberation Organization and the Authority with the United 
States, Israel, and the international community (including the 
``Roadmap to Peace''), and (5) the Authority had taken 
effective steps and made demonstrable progress toward 
completing the process of purging from its security services 
individuals with ties to terrorism; dismantling all terrorist 
infrastructure, confiscating unauthorized weapons, arresting 
and bringing terrorists to justice, destroying unauthorized 
arms factories, thwarting and preempting terrorist attacks, and 
fully cooperating with Israel's security services; halting all 
anti-Israel incitement in Authority-controlled electronic and 
print media and in schools, mosques, and other institutions it 
controlled, and replacing these materials, including textbooks, 
with material that promote tolerance, peace, and coexistence 
with Israel; ensuring democracy, the rule of law, and an 
independent judiciary, and adopting other reforms such as 
ensuring transparent and accountable governance; and ensuring 
the financial transparency and accountability of all government 
ministries and operations.
    Within the jurisdiction of the Judiciary Committee, the 
bill would have provided that a visa would not be issued to any 
alien who was an official of, affiliated with, or serving as a 
representative of the Palestinian Authority during any period 
for which such a certification was not in effect. This bar to 
visa issuance would not apply if the President determined and 
certified to the appropriate congressional committees, on a 
case-by-case basis, that the issuance of a visa to such an 
alien was important to the national security interests of the 
U.S. or with respect to visas issued in connection with U.S. 
obligations to let officials of governments into the U.S. for 
United Nations business.
    The bill also would have provided that it would be unlawful 
to establish or maintain an office within the jurisdiction of 
the United States at the behest or direction of, or with funds 
provided by, the Palestinian Authority or the Palestine 
Liberation Organization during any period for which a 
Presidential certification was not in effect with respect to 
the Authority. (The President was provided with waiver 
authority.) The Attorney General would have been required to 
take the necessary steps and institute the necessary legal 
action to effectuate this provision, including steps necessary 
to apply it to the Permanent Observer Mission of Palestine to 
the United Nations.
    Legislative History.--On February 1, 2006, Representative 
Ileana Ros-Lehtinen introduced H.R. 4681. On April 6, 2006, the 
International Relations Committee ordered H.R. 4681 reported as 
amended by a vote of 36-2. On May 10, 2006, the Judiciary 
Committee ordered H.R. 4681 reported as amended by a voice 
vote. On May 11, 2006, the International Relations Committee 
reported H.R. 4681 (H. Rept. 109-462, Part I). On May 15, 2006, 
the Judiciary Committee reported H.R. 4681 (H. Rept. 109-462, 
Part II). On May 23, 2006, the House passed H.R. 4681 under 
suspension of the rules by a vote of 361-37, with 9 members 
voting present. No further action was taken on H.R. 4681.

H.R. 6094, the Community Protection Act of 2006

    Summary.--The Community Protection Act includes (1) the 
Dangerous Alien Detention Act of 2006, a modified version of 
section 602 of H.R. 4437, (2) the Criminal Alien Removal Act, 
containing the language of section 610 of H.R. 4437, and (3) 
the Alien Gang Removal Act of 2006, containing the language of 
section 608 of H.R. 4437.
    Legislative History.--On September 19, 2006, Chairman F. 
James Sensenbrenner, Jr., introduced H.R. 6094. On September 
21, 2006, the House passed H.R. 6094 by a vote of 328-95. No 
further action was taken on H.R. 6094.

H.R. 6095, the Immigration Law Enforcement Act of 2006

    Summary.--The Immigration Law Enforcement Act includes 
State and Local Law Enforcement Cooperation in the Enforcement 
of Immigration Law Act, containing the language of section 220 
of H.R. 4437.
    The bill also includes the Alien Smuggler Prosecution Act. 
The various United States Attorney offices do not use uniform 
guidelines for the prosecution of smuggling offenses. 
Understanding that border-area U.S. Attorneys face an 
overwhelming workload, a lack of sufficient smuggling 
prosecutions in some areas has only encouraged additional 
smuggling and has demoralized Border Patrol and DHS agents who 
have seen released many of the smugglers they have apprehended. 
This title would have provided a Sense of Congress that the 
Attorney General should adopt uniform guidelines for the 
prosecution of smuggling offenses to be followed by each United 
States Attorney's office and would have authorized in each of 
the fiscal years 2008 through 2013 an increase in the number of 
attorneys in United States Attorneys offices to prosecute such 
cases of not less than 20 over the previous year's level.
    The bill also includes the Ending Catch and Release Act of 
2006. The Department of Homeland Security is subject to 
injunctions entered as much as 30 years ago that impact its 
ability to enforce the immigration laws. For instance, one 
injunction dating from the El Salvadoran civil war of the 1980s 
effectively prevents DHS from placing Salvadorans in expedited 
removal proceedings. DHS is using expedited removal to 
expeditiously remove other non-Mexican illegal immigrants who 
are apprehended along the Southern border in order to end the 
policy of ``catch and release''. This title would have resulted 
in the end of the Salvadoran injunction by establishing 
requirements under which courts could order prospective relief 
in immigration cases, and by requiring courts to promptly rule 
on government motions to vacate, modify, dissolve, or otherwise 
terminate orders granting prospective relief in immigration 
cases and stay orders granting such relief.
    Legislative History.--On September 19, 2006, Chairman F. 
James Sensenbrenner, Jr., introduced H.R. 6095. On September 
21, 2006, the House passed H.R. 6095 by a vote of 277-140. No 
further action was taken on H.R. 6095.

H.R. 5323, the Proud to be an American Citizen Act

    Summary.--H.R. 5323, the ``Proud to be an American Citizen 
Act'' would have enabled U.S. Citizenship and Immigration 
Services or non-profit entities to conduct naturalization 
ceremonies on or near Independence Day each year. It would have 
directed the Department of Homeland Security to make available 
up to $5,000 per ceremony from funds already available to the 
Department, thus not authorizing the expenditure of new funds 
for the ceremonies. The funds (up to $5,000) could have been 
used only for the cost of government personnel needed to 
administer the Oath of Allegiance (including travel), 
facilities rental, brochures, and other logistics such as 
sanitation. The bill would have required any non-government 
entity seeking to organize a naturalization ceremony to receive 
approval under an application process prescribed by the 
Department of Homeland Security.
    Legislative History.--On May 9, 2006, Representative Sam 
Farr introduced H.R. 5323. On June 29, 2006, the Judiciary 
Committee ordered H.R. 5323 reported by a voice vote. On July 
17, 2006, the Judiciary Committee reported H.R. 5323 (H. Rept. 
109-576). On September 25, 2006, the House passed H.R. 5323 
under suspension of the rules by a voice vote. No further 
action was taken on H.R. 5323.

                            FEDERAL CHARTERS

Subcommittee policy on new federal charters

    On March 10, 2005, the Subcommittee on Immigration, Border 
Security, and Claims adopted the following policy concerning 
the granting of new federal charters:
    The Subcommittee will not consider any legislation to grant 
new federal charters because such charters are unnecessary for 
the operations of any charitable, non-profit organization and 
falsely imply to the public that a chartered organization and 
its activities carry a congressional ``seal of approval,'' or 
that the Federal Government is in some way responsible for its 
operations. The Subcommittee believes that the significant 
resources required to properly investigate prospective 
chartered organizations and monitor them after their charters 
are granted could and should be spent instead on the 
Subcommittee's large range of legislative and other substantive 
policy matters. This policy is not based on any decision that 
the organizations seeking federal charters are not worthwhile, 
but rather on the fact that federal charters serve no valid 
purpose and therefore ought to be discontinued.
    This policy represented a continuation of the 
Subcommittee's informal policy, which was put in place at the 
start of the 101st Congress and has been continued every 
Congress since, against granting new federal charters to 
private, non-profit organizations.
    A federal charter is an Act of Congress passed for private, 
non-profit organizations. The primary reasons that 
organizations seek federal charters are to have the honor of 
federal recognition and to use this status in fundraising. 
These charters grant no new privileges or legal rights to 
organizations. At the conclusion of the 104th Congress, 
approximately 90 private, non-profit organizations had federal 
charters over which the Judiciary Committee has jurisdiction. 
About half of these had only a federal charter, and were not 
incorporated in any state and thus not subject to any state 
regulatory requirements.
    Those organizations chartered more recently are required by 
their charters to submit annual audit reports to Congress, 
which the Subcommittee sent to the General Accounting Office to 
determine if the reports comply with the audit requirements 
detailed in the charter. The GAO does not conduct an 
independent or more detailed audit of chartered organizations.

                             PRIVATE BILLS

    During the 109th Congress, the Subcommittee on Immigration 
and Claims received referral of 4 private claims bills, 1 
private claims resolution, and 77 private immigration bills. 
The Subcommittee held no hearings on these bills. The 
Subcommittee recommended 1 private claims resolution and 2 
private immigration bills to the full Committee. The Committee 
ordered no private claims resolutions or private immigration 
bills reported favorably to the House.

                     SUMMARY OF OVERSIGHT HEARINGS

Immigration enforcement resources authorized in the Intelligence Reform 
        and Terrorism Prevention Act of 2004, March 3, 2005 (Serial No. 
        109-4)

    Witnesses: Mr. Peter Gadiel, 9-11 Families for a Secure 
America; Mr. T.J. Bonner, President, National Border Patrol 
Council; Mr. Robert Eggle, Father of Kris Eggle, slain National 
Park Service Ranger; The Honorable Solomon P. Ortiz, 27th 
District of Texas.

Interior immigration enforcement resources, March 10, 2005 (Serial No. 
        109-5)

    Witnesses: Mr. Paul Martin, Deputy Inspector General, U.S. 
Department of Justice; Mr. Michael Cutler, Former Special 
Agent, Immigration and Naturalization Service; Mr. Randy 
Callahan, Vice President, National Homeland Security Council; 
Dr. Craig Haney, Professor, University of California at Santa 
Cruz.

Immigration and the alien gang epidemic: Problems and solutions, April 
        13, 2005 (Serial No. 109-8)

    Witnesses: The Honorable Michael Garcia, Assistant 
Secretary for Immigration and Customs Enforcement, U.S. 
Department of Homeland Security; Ms. Marsha Garst, 
Commonwealth's Attorney for Rockingham County, Virginia; Ms. 
Heather MacDonald, Senior Fellow, The Manhattan Institute; Ms. 
Mai Fernandez, Chief Operating Officer, Latin American Youth 
Center.

October 2005 statutory deadline for visa waiver program countries to 
        produce security passports: Why it matters to Homeland 
        Security, April 21, 2005 (Serial No. 109-23)

    Witnesses: Mr. Rudi Veestraeten, Director General for 
Consular Affairs, Belgian Ministry of Foreign Affairs; Ms. 
Elaine Dezenski, Acting Assistant Secretary for Policy and 
Planning, Border and Transportation Security Directorate, U.S. 
Department of Homeland Security; Mr. Richard L. Skinner, Acting 
Inspector General, U.S. Department of Homeland Security; Mr. 
Joel F. Shaw, President/CEO, BioDentity Systems Corporation.

New jobs in recession and recovery: Who are getting them and who are 
        not?, May 4, 2005 (Serial No. 109-39)

    Witnesses: Dr. Steven Camarota, Director of Research, 
Center for Immigration Studies; Dr. Paul Harrington, Associate 
Director, Center for Labor Market Studies, Northeastern 
University; Mr. Matthew J. Reindl, Stylecraft Interiors; Dr. 
Harry J. Holzer, Professor and Associate Dean of Public Policy, 
Georgetown University.

The Olympic Family--Functional or Dysfunctional?, June 9, 2005 (Serial 
        No. 109-81)

    Witnesses: Mr. Jim Scherr, Chief Executive Officer, United 
States Olympic Committee; Mr. Mark Henderson, Chair, Athletes' 
Advisory Council; Mr. Paul Hamm, 2004 Athens Olympics All 
Around Champion; Mr. Thomas Burke, Vice Chair, Pan American 
Sports Council, USOC.

Diversity Visa Program, June 15, 2005 (Serial No. 109-49)

    Witnesses: Howard J. Krongard, Inspector General, United 
States Department of State; Mark Krikorian, Center for 
Immigration Studies; Rosemary Jenks, Numbers USA; Bruce 
Morrison, Chairman, Morrison Public Affairs Group.

Lack of worksite enforcement & employer sanctions, June 21, 2005 
        (Serial No. 109-51)

    Witnesses: Mr. Richard M. Stana, Director of Homeland 
Security and Justice Issues, U.S. Government Accountability 
Office; Mr. Terence P. Jeffrey, Editor, Human Events; Mr. Carl 
W. Hampe, Partner, Baker & McKenzie, LLP; Ms. Jennifer Gordon, 
Associate Professor of Law, Fordham Law School.

Immigration removal procedures implemented in the aftermath of the 
        September 11th attacks, June 30, 2005 (Serial No. 109-54)

    Witnesses: Lily Swenson, Deputy Associate Attorney General, 
U.S. Department of Justice; Joseph R. Greene, Director of 
Training and Development, Department of Homeland Security; Paul 
Rosenzweig, Senior Legal Research Fellow, the Heritage 
Foundation; William D. West, Former Supervisory Special Agent, 
INS.

Sources and methods of foreign nationals engaged in economic and 
        military espionage, September 15, 2005 (Serial No. 109-58)

    Witnesses: The Honorable Michelle Van Cleave, National 
Counterintelligence Executive, Office of the Director of 
National Intelligence; Dr. Larry Wortzel, Visiting Fellow, The 
Heritage Foundation; Mr. Maynard Anderson, President, Arcadia 
Group Worldwide, Inc., Former Deputy Under Secretary of Defense 
for Security Policy; Dr. William A. Wulf, President, National 
Academy of Engineering.

Dual citizenship, birthright citizenship, and the meaning of 
        sovereignty, September 29, 2005 (Serial No. 109-63)

    Witnesses: Dr. Stanley Renshon, Professor, City University 
of New York Graduate Center; Dr. John Fonte, Senior Fellow, The 
Hudson Institute; Dr. John Eastman, Professor, Chapman 
University School of Law; Mr. Peter Spiro, Associate Dean for 
Faculty Development and Dean and Virginia Rusk Professor of 
International Law, University of Georgia School of Law.

How illegal immigration impacts constituencies: Perspectives from 
        Members of Congress, November 10 and 17, 2005 (Serial Nos. 109-
        73 and 109-76)

    Witnesses: The Honorable Henry Bonilla, 23rd District, 
Texas; the Honorable Stevan Pearce, 2nd District, New Mexico; 
The Honorable Luis Gutierrez's, 4th District, Illinois; the 
Honorable Jack Kingston, 1st District, Georgia; the Honorable 
Marsha Blackburn, 7th District, Tennessee; the Honorable John 
Carter, 31st District, Texas; the Honorable John Lewis, 5th 
District, Georgia.

Joint Oversight Hearing on weak bilateral law enforcement presence at 
        the U.S.-Mexico border: Territorial integrity and safety issues 
        for American citizens, November 17, 2005 (Serial No. 109-90)

    Witnesses: Mr. Chris Swecker, Assistant Director, Criminal 
Investigative Division, Federal Bureau of Investigation; Mr. 
William Reid, Acting Assistant Director, Office of 
Investigations, U.S. Immigration & Customs Enforcement; Mr. Rey 
Garza, Deputy Chief Patrol Agent, U.S. Customs and Border 
Protection; Mr. T.J. Bonner, President, National Border Patrol 
Council.

The Energy Employees Occupational Illness Compensation Program Act: Are 
        we fulfilling the promise we made to Cold War veterans when we 
        created the program?, March 1, May 4, July 20, November 15th, 
        and December 5th, 2006 (Serial Nos. 109-110, 109-151, 109-139, 
        X, Y)

    Witnesses: Shelby Hallmark, Director for the Office of 
Worker's Compensation Programs, United States Department of 
Labor; John Howard, M.D., Director, National Institute for 
Occupational Safety and Health; James Melius, M.D., DrPH., 
Administrator, New York State Laborers Health and Safety Trust 
Fund, Member of the Advisory Board on Radiation and Worker 
Health; Richard Miller, Senior Policy Analyst, Government 
Accountability Project; the Honorable Zach Wamp, 3rd District, 
Tennessee; the Honorable Tom Udall, 3rd District, New Mexico; 
the Honorable Doc Hastings, 4th District, Washington; the 
Honorable Mark Udall, 2nd District, Colorado; Austin Smythe, 
Acting Deputy Director, Office of Management and Budget; Lewis 
Wade, PhD., Special Assistant to the Director, National 
Institute for Occupational Safety and Health; Denise Brock, 
Director, United Nuclear Weapons Workers; Laurence Fuortes 
M.D.Professor, Department of Occupational and Environmental 
Health, University of Iowa; John Mauro, Sanford, Cohen, and 
Associates; Kathy Bates Surviving Claimant under the Energy 
Employees Occupational Illness Compensation Program Act; 
Richard Miller, Senior Policy Analyst, Government 
Accountability Project; Shelby Hallmark Director for the Office 
of Worker's Compensation Programs, United States Department of 
Labor; John Howard M.D., Director, National Institute for 
Occupational Safety and Health; and Daniel Bertoni, Director, 
Education, Workforce, and Income Security Issues, United States 
Government Accountability Office.

Joint Oversight Hearing on Outgunned and Outmanned: Local law 
        enforcement confronts violence along the southern border, March 
        2, 2006 (Serial No. 109-85)

    Witnesses: Sheriff Leo Samaniego, El Paso County Sheriff's 
Office, El Paso, Texas; Sheriff Larry Dever, Cochise County 
Sheriff's Office, Bisbee, Arizona; Sheriff Todd Garrison, Dona 
Ana County Sheriff's Office, Las Cruces, New Mexico; Sheriff 
Sigifredo Gonzalez, Jr., Zapata County Sheriff's Office, 
Zapata, Texas.

Should Congress raise the H-1B cap?, March 30, 2006 (Serial No. 109-95)

    Witnesses: John M. Miano, Chief Engineer, Colosseum 
Builders, Inc.; Stuart Anderson, Executive Director, National 
Foundation for American Policy; David Huber, Information 
Technology Professional, Chicago, Illinois; Dr. Delbert Baker, 
President, Oakwood College.

The need to implement WHTI to protect U.S. Homeland Security, June 8, 
        2006 (Serial No. 109-117)

    Witnesses: Janice L. Kephart, Principal and Managing 
Member, 9/11 Security Solutions, LLC; David Harris, Director, 
Insignis Strategic Research, Inc.; Paul Rosenzweig, Acting, 
Assistant Secretary for Policy Development, United States 
Department of Homeland Security; Roger Dow, President and Chief 
Executive Officer, Travel Industry Association of America.

Is the Labor Department doing enough to protect U.S. workers? June 22, 
        2006 (Serial No. 109-149)

    Witnesses: Sigurd L. Nilsen, Ph.D. , Director for 
Education, Workforce, and Income Security Issues, United States 
Government Accountability Office; Alfred Robinson, Acting 
Director, Wage and Hour Administration, Employment Standards 
Administration, United States Department of Labor; John M. 
Miano, Director, Programmers Guild; Ana Avendano, Associate 
General Counsel and Director, Immigrant Worker Program, 
American Federation of Labor-Congress of Industrial 
Organizations.

Should we embrace the Senate's grant of amnesty to millions of illegal 
        aliens and repeat the mistakes of the Immigration Reform and 
        Control Act of 1986?, July 18, 2006 (Serial No. 109-127)

    Witnesses: The Honorable Silvestre Reyes, 16th District, 
Texas; Phyllis Schlafly, President, Eagle Forum; Steven 
Camarota, Director of Research, Center for Immigration Studies; 
James R. Edwards, Jr., Adjunct Fellow, Hudson Institute.

Whether attempted implementation of the Senate Immigration Bill will 
        result in an administrative and national security nightmare, 
        July 27, 2006 (Serial No. 109-130)

    Witnesses: Peter Gadiel, President, 9/11 Families for a 
Secure America; Michael Maxwell, former Director of the Office 
of Security and Investigations, USCIS; Michael Cutler, former 
INS Examiner, Inspector, and Special Agent; His Excellency 
Nicholas DiMarzio, the Bishop of the Brooklyn Diocese, the 
Roman Catholic Church.

                    SUMMARY OF LEGISLATIVE HEARINGS

May 12, 2005: Legislative Hearing on H.R. 98, the ``Illegal Immigration 
        Enforcement and Social Security Protection Act of 2005.'' 
        (Serial No. 109-35)

    Witnesses: The Honorable David Dreier, 26th District, 
California; the Honorable Silvestre Reyes, 16th District, 
Texas; TJ Bonner, President, National Border Patrol Council; 
Marc Rotenberg, Executive Director, Electronic Privacy 
Information Center.

June 28, 2005: Legislative Hearing on H.R. 2933, ``The Alien Gang 
        Removal Act of 2005.'' (Serial No. 109-52)

    Witnesses: The Honorable J. Randy Forbes, 4th District, 
Virginia; Kris W. Kobach, Associate Professor of Law, 
University of Missouri Kansas City; Michael Hethmon, Staff 
Attorney, Federation of American Immigration Reform; David 
Cole, Professor, Georgetown University Law School.

May 18, 2006: Legislative Hearing on H.R. 4997, ``The Physicians for 
        Underserved Areas Act.'' (Serial No. 109-111)

    Witnesses: The Honorable Jerry Moran, 1st District, Kansas; 
Edward Salsberg, Director, Center for Workforce Studies, 
Association of American Medical Colleges; John B. Crosby, 
J.D.,Executive Director, The American Osteopathic Association; 
Leslie G. Aronovitz, Director, Health Care, United States 
Government Accountability Office.

                SUMMARY OF FULL COMMITTEE FIELD HEARINGS

How does illegal immigration impact American taxpayers and will the 
        Reid-Kennedy Amnesty worsen the blow?, August 2, 2006, San 
        Diego, California (Serial No. 109-135)

    Witnesses: the Honorable Michael D. Antonovich, L.A. County 
Supervisor; Mr. Kevin J. Burns, Chief Financial Officer, 
University Medical Center, Tucson; Mr. Robert Rector, The 
Heritage Foundation; Mr. Leroy Baca, Los Angeles County 
Sheriff; Professor Wayne Cornelius, University of California, 
San Diego.

Should Mexico hold veto power over U.S. border security decisions?, 
        August 17, 2006, El Paso, Texas (Serial No. 109-147)

    Witnesses: Sheriff Leo Samaniego, Sheriff of El Paso County 
Texas; Alison Siskin, Senior Analyst, Congressional Research 
Service; Andrew Ramirez, Chairman, Friends of the Border 
Patrol; Chief Richard Wiles, El Paso Police Department, El 
Paso, Texas; Kathleen Walker, President-Elect of the American 
Immigration Lawyers Association.

The Reid-Kennedy Bill's Amnesty: Impacts on taxpayers, fundamental 
        fairness, and the Rule of Law, August 24, 2006, Concord, New 
        Hampshire (Serial No. 109-153)

    Witnesses: The Honorable Andrew Renzullo, New Hampshire 
State Representative; Steven Camarota, Director of Research, 
Center for Immigration Studies; Peter Gadiel, President, 9/11 
Families for a Secure America; Dr. John Lewy, American Academy 
of Pediatrics; John Young, Co-Chair, The Agricultural Coalition 
for Immigration Reform.

The Reid-Kennedy Bill: The effect on American workers' wages and 
        employment opportunities, August 29, 2006, Evansville, Indiana 
        (Serial No. 109-129)

    Witnesses: Vernon Briggs, Professor of Industrial and Labor 
Relations, Cornell University; Steven Camarota, Director of 
Research, Center for Immigration Studies; Paul Harrington, 
Associate Director, Center for Labor Market Studies, 
Northeastern University; Ricardo Parra, Midwest Council of La 
Raza.

Is the Reid-Kennedy Bill a repeat of the failed Amnesty of 1986?, 
        September 1, 2006, Dubuque, Iowa (Serial No. 109-142)

    Witnesses: The Honorable Charles Grassley, United States 
Senator from the State of Iowa; Michael W. Cutler, Former 
Inspector, Examiner, and Special Agent, Immigration and 
Naturalization Service; John Fonte, PhD., Director, Center for 
American Common Culture, Hudson Institute; Councilwoman Ann E. 
Michalski, City Council of Dubuque, Iowa; Professor Robert Lee 
Maril, Chair, Department of Sociology, East Carolina 
University.
           SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

   CHRIS CANNON, Utah, Chairman

 MELVIN L. WATT, North Carolina      HOWARD COBLE, North Carolina
 WILLIAM D. DELAHUNT, Massachusetts  TRENT FRANKS, Arizona
 CHRIS VAN HOLLEN, Maryland          STEVE CHABOT, Ohio
 JERROLD NADLER, New York            MARK GREEN, Wisconsin
 DEBBIE WASSERMAN SCHULTZ, Florida   J. RANDY FORBES, Virginia
                                     LOUIE GHOMERT, Texas

          Tabulation of subcommittee legislation and activity

Legislation referred to the Subcommittee.........................    41
Legislation reported favorably to the full Committee.............     4
Legislation reported adversely to the full Committee.............     0
Legislation reported without recommendation to the full Committee     0
Legislation reported as original measure to the full Committee...     0
Legislation discharged from the Subcommittee.....................     2
Legislation ordered tabled in the Subcommittee...................     0
Legislation pending before the full Committee....................     1
Legislation reported to the House................................     4
Legislation discharged from the Committee........................     0
Legislation pending in the House.................................     4
Legislation passed by the House..................................     1
Legislation pending in the Senate................................     0
Legislation vetoed by the President..............................     0
Legislation enacted into public law..............................     1
Legislation enacted into public law as part of another bill......     0
Legislation on which hearings were held..........................     8
Days of legislative hearings.....................................     8
Days of oversight hearings.......................................    13

                    Jurisdiction of the Subcommittee

    The Subcommittee on Commercial and Administrative Law has 
jurisdiction over the following subject matters: administrative 
law, bankruptcy and bankruptcy judgeships, commercial law, 
independent counsel, interstate compacts, certain matters 
pertaining to privacy, State taxation affecting interstate 
commerce, oversight of the Justice Department and relevant 
agencies, and other matters as referred by the Chairman.

                         Legislative Activities


                           ADMINISTRATIVE LAW

H.R. 682, The ``Regulatory Flexibility Improvements Act''

    Summary.--H.R. 682, the ``Regulatory Flexibility 
Improvements Act,'' consists of a comprehensive set of reforms 
intended to encourage Federal agencies ``to analyze and uncover 
less costly alternative regulatory approaches'' and to ensure 
that ``all impacts, including foreseeable indirect effects, of 
proposed and final rules are considered by agencies during the 
rulemaking process.'' \1\ It amends the Regulatory Flexibility 
Act (RFA),\2\ among other provisions.
---------------------------------------------------------------------------
    \1\ H.R. 682, Sec. 2, 109th Cong. (2005).
    \2\ Pub. L. No. 96-354, 94 Stat. 1164 (codified at 5 U.S.C. 
Sec. Sec. 601-612).
---------------------------------------------------------------------------
    Enacted in 1980, the RFA requires Federal agencies to 
assess the impact of proposed regulations on ``small 
entities,'' which the RFA defines as either a small business, 
small organization, or small governmental jurisdiction.\3\ One 
of the principal purposes of the RFA is to address 
``unnecessary and disproportionately burdensome demands'' that 
Federal regulatory and reporting requirements place on small 
entities.\4\ This analysis is not required, however, if the 
agency certifies that the rule will not have a ``significant 
economic impact on a substantial number of small entities.'' 
\5\ As amended in 1996,\6\ the RFA permits judicial review 
under certain circumstances of, among other matters, an 
agency's regulatory flexibility analysis for a final rule and 
any certification by an agency averring that a rule will not 
have a significant economic impact on a substantial number of 
small entities.\7\
---------------------------------------------------------------------------
    \3\ 5 U.S.C. Sec. 601(6) (2000).
    \4\ Pub. L. No. 96-354, Sec. 2(a)(3), 94 Stat. 1164 (1980).
    \5\ 5 U.S.C. Sec. 605(b) (2000).
    \6\ Small Business Regulatory Enforcement Fairness Act of 1996, 
Pub. L. No. 104-121, Sec. 242, 110 Stat. 847, 857 (1996).
    \7\ 5 U.S.C. Sec. 611 (2000).
---------------------------------------------------------------------------
    Since its enactment, certain deficiencies within the RFA 
have been identified. The Government Accountability Office 
(GAO), for example, has on several occasions reported on the 
Act's uneven implementation and lack of clarity. In 1991, the 
GAO cited weaknesses in the Act and how it was implemented by 
the Small Business Administration (SBA).\8\ Based on a report 
it prepared the previous year,\9\ the GAO testified at a 
hearing in 1995 before the Senate Small Business Committee that 
agencies' compliance with the RFA ``varied widely from one 
agency to another.'' \10\ Even after the enactment of the Small 
Business Regulatory Enforcement Fairness Act, which amended the 
RFA in several significant respects, the GAO in 2002 reported 
that agencies' compliance was still deficient.\11\
---------------------------------------------------------------------------
    \8\ U.S. Government Accountability Office, Regulatory Flexibility 
Act: Inherent Weaknesses May Limit Its Usefulness for Small 
Governments, GAO/HRD-91-16 (Jan. 11, 1991). The report was particularly 
critical of the SBA. See, e.g., id. at 2 (noting, for example, that 
``[w]hile the SBA can address some of these problems, it has not over 
the past decade'').
    \9\ U.S. Government Accountability Office, Regulatory Flexibility 
Act: Status of Agencies' Compliance, GAO/GGD-94-105 (Apr. 27, 1994).
    \10\ Regulatory Flexibility Act--Status of Agencies' Compliance: 
Hearing Before the S. Comm. on Small Business, 104th Cong. 51 (1995) 
(statement of Johnny C. Finch, Assistant Comptroller General--General 
Government Division, U.S. Government Accountability Office). The GAO 
witness explained the reasons for such noncompliance:
    (1) the act does not expressly authorize SBA or any other entity to 
interpret key statutory provisions such as ``significant economic 
impact'' or ``substantial number of small entities;'' (2) the act does 
not require SBA or any other entity to develop criteria for agencies to 
follow in reviewing their rules; (3) in the absence of this express 
authority or requirement, no guidance has been issued to federal 
agencies defining key statutory provisions; and (4) the act does not 
authorize SBA or any other entity to compel rulemaking agencies to 
comply with its provisions.
    \11\ SBBEFA Compliance--Is It the Same Old Story?: Hearing Before 
the H. Comm. on Small Business, 107th Cong. 51 (2002) (statement of 
Victor Rezendes, Managing Director--Strategic Issues Team, U.S. 
Government Accountability Office).
---------------------------------------------------------------------------
    Legislative History.--Representative Donald Manzullo (R-
IL), Chair of the House Committee on Small Business, introduced 
H.R. 682, the ``Regulatory Flexibility Improvements Act,'' on 
February 9, 2005. In the 108th Congress, he introduced similar 
legislation.\12\ The legislation is supported by the United 
States Chamber of Commerce \13\ and the National Federation of 
Independent Businesses.\14\ OMB Watch, an advocacy 
organization, asserted that the bill's requirements would have 
a ``troubling'' impact on the regulatory process.\15\ The 
Subcommittee held a hearing on H.R. 682, on July 20, 2006. 
Witnesses at the hearing included: the Honorable Thomas 
Sullivan, Chief Counsel for Advocacy, United States Small 
Business Administration; Christopher Mihm, Director of 
Strategic Issues at GAO; J. Robert Shull, Director of 
Regulatory Policy, OMB Watch; and David Frulla, Esq. from the 
law firm of Kelley Drye Collier Shannon.
---------------------------------------------------------------------------
    \12\ H.R. 2345, 108th Cong. (2003).
    \13\ See, e.g., The RFA at 25: Needed Improvements for Small 
Business Regulatory Relief: Hearing Before the H. Comm. on Small 
Business, 109th Cong. 11 (2005) (statement of Marc Freedman, Director, 
Labor Law Policy, U.S. Chamber of Commerce).
    \14\ See, e.g., National Federation of Independent Business, 
Current Legislation--Key Bills in Congress, http://capwiz.com/nfib/
issues/bills (last visited July 6, 2006).
    \15\ By requiring agencies to review all such rules every ten 
years, this bill would drain agency resources by diverting them away 
from protecting the public and into navel-gazing analyses. Even proven 
protections such as the ban on lead in gasoline and safeguards 
protecting workers against black lung would be subject to these 
reassessments. These analyses would be even more burdensome than under 
current law, because the bill would force agencies to calculate 
reasonably foreseeable indirect economic effects, which agency 
representatives at a recent Senate roundtable suggested would be so 
speculative as to be useless for policymakers.--OMB Watch, Regulatory 
Impact--In Congress, http://www.ombwatch.org/article/articleview/2936/
1/308?TopicID=1(last visited July 6, 2006).
---------------------------------------------------------------------------

                             COMMERCIAL LAW

H.R. 800, the ``Lawful Commerce in Arms Act''

    Summary.--H.R. 800, the ``Lawful Commerce in Arms Act,'' 
intends to provide protection for firearms manufacturers from 
lawsuits arising out of the acts of people who criminally or 
unlawfully misuse their products, protecting all citizens' 
constitutionally protected right to bear arms.
    H.R. 800 provides that a ``qualified civil liability 
action'' cannot be brought in any state or Federal court. A 
``qualified civil liability action'' is defined to be a civil 
action, administrative proceeding, or any other proceeding 
brought by a person against a manufacturer, seller, or a trade 
association for damages resulting from the criminal or unlawful 
misuse of a qualified firearms product.\16\ The bill was not 
intended to prevent legal actions for negligent sales or 
entrustments, sales that knowingly violate state or Federal 
statutes, actions in breach of contract or warranty, or actions 
for death, physical injuries, or property damage resulting 
directly from a defect in design or manufacture of a product.
---------------------------------------------------------------------------
    \16\ H.R. 800 Sec. 4, 109th Cong. (2005).
---------------------------------------------------------------------------
    Legislative History.--H.R. 800 was introduced by 
Representative Cliff Stearns (R-FL) on February 15, 2005. The 
Subcommittee held a legislative hearing on March 15, 2005. 
Witnesses who testified at the hearing included: Rodd Walton, 
Secretary and General Counsel, Sigarms, Inc.; Dennis Henigan, 
Director, Legal Action Project, Brady Center to Prevent Gun 
Violence; Bradley Beckman, Counsel to North American Arms, 
Beckman and Associates; and Lawrence Keane, Senior Vice 
President and General Counsel, National Shooting Sports.
    On April 11, 2005, the Subcommittee was discharged from 
further consideration of H.R. 800. Thereafter, the Committee 
met on April 20, May 18, and May 25, 2005 to markup the bill. 
The Committee ordered H.R. 800 to be favorably reported on May 
25, 2005, with an amendment, by a recorded vote of 22 yeas to 
12 nays.\17\ The Senate companion bill, S. 397, the 
``Protection of Lawful Commerce in Arms Act,'' passed in the 
Senate on July 29, 2005 by a vote of 65 to 31. It was received 
in the House on September 6, 2005 and passed on October 20, 
2005. S. 397 was signed by the President and became Public Law 
109-92 on October 26, 2005.
---------------------------------------------------------------------------
    \17\ H.R. Rep. No. 109-124, at 38 (2005).
---------------------------------------------------------------------------

H.R. 3509, the ``Workplace Goods Job Growth and Competitiveness Act of 
        2005''

    Summary.--H.R. 3509, the ``Workplace Goods Job Growth and 
Competitiveness Act of 2005,'' would provide for a nationwide 
statute of repose of twelve years for durable goods used in the 
workplace. This legislation would prevent manufacturers from 
being held liable in suits concerning products that have long 
since left their control. Statutes of repose have been enacted 
in a number of states to counter the long tail of liability 
that American manufacturers must endure. Approximately 12 
states currently have statutes of repose for products, and 
among those states there is a clear consensus that the period 
of repose should be 12 years or less.\18\ However, as 
manufacturers sell goods in all 50 states, a national statute 
of repose is needed to effectively address their liability 
exposure. H.R. 3509 was intended to be a narrowly crafted 
remedy to meet the needs of manufacturers of durable workplace 
goods who face serious long tail liability exposure. The bill 
would not apply to consumer goods.
---------------------------------------------------------------------------
    \18\ See, e.g., Colo. Rev. Stat. Ann. Sec. 13-80-107 (seven year 
statute of repose on manufacturing equipment); Conn. Gen. Stat. 
Ann.Sec. 52-577a (ten year statute of repose on manufacturing 
equipment); Ga. Code Ann. Sec. 51-1-11 (ten year statute of repose for 
products); 735 Ill. Comp. Stat. Ann. 5/13-213 (12 year statute of 
repose for products); Ind. Code Sec. 34-20-3-1 (ten year statute of 
repose for products); Iowa Code Ann. Sec. 614.1(2A) (fifteen year 
statute of repose for products); Neb. Rev. Stat. Ann. Sec. 25-224 (ten 
year statute of repose for products); N.C. Gen. Stat. Ann. Sec. 1-
50(a)(6) (six year statute of repose for products); Or. Rev. Stat. 
Sec. 30.905 (ten year statute of repose for products); Tenn. Code. Ann. 
Sec. 29-28-103 (ten year statute of repose for products); and Tex. Civ. 
Prac. & Rem. Code Ann. Sec. 16.012 (fifteen year statute of repose for 
products).
---------------------------------------------------------------------------
    Legislative History.--H.R. 3509 was introduced by 
Representative Steve Chabot (R-OH) on July 28, 2005. The 
Subcommittee held a legislative hearing on March 14, 2006. 
Witnesses who testified included: Elizabeth Sitterly, Esq., 
Legal Counsel, Giddings & Lewis, LLC; Kevin McMahon, Esq., 
Partner, Nelson Mullins Riley & Scarborough, LLP; Professor 
Andrew Popper, Washington College of Law, American University; 
and James H. Mack, Esq., Vice President of Tax and Economic 
Policy, The Association of Manufacturing Technology. The bill 
was discharged from the Subcommittee on March 24, 2006. The 
Committee marked up H.R. 3509 on March 29, 2006 and July 19, 
2006. The legislation was ordered to be reported favorably, 
with an amendment, by the Committee on July 19, 2006 by a 
recorded vote of 21 to 12. The legislation was not further 
considered prior to the end of the 109th Congress.

                                PRIVACY

H.R. 2840, the ``Federal Agency Protection of Privacy Act of 2005''

    Summary.--H.R. 2840, the ``Federal Agency Protection of 
Privacy Act of 2005,'' would require agencies to prepare 
privacy impact assessments for proposed and final rules that 
pertain to the collection, maintenance, use, or disclosure of 
personally identifiable information from ten or more 
individuals, other than agencies, instrumentalities, or 
employees of the Federal government. With limited exception, 
such assessments will be made available to the public for 
comment. While H.R. 2840 makes no substantive demands on 
Federal agencies with respect to privacy, it does require these 
agencies to analyze how the rule will impact the privacy 
interests of individuals. This requirement is similar to other 
analyses that agencies currently conduct, such as those 
required by the Regulatory Flexibility Act \19\ and the E-
Government Act of 2002.\20\ Specifically, H.R. 2840 would 
require the agency to explain: (1) what personally identifiable 
information will be collected; (2) how such information will be 
collected, maintained, used, disclosed, and protected; (3) 
whether a person to whom the personally identifiable 
information pertains is allowed access to such information and 
whether such person may correct any inaccuracies; (4) how 
information collected for one purpose will be prevented from 
being used for another purpose; and (5) the steps the agency 
has taken to minimize any significant privacy impact that a 
final rule may have. In addition, the bill would have permitted 
judicial review of certain final agency actions, and required 
agencies to review rules on a periodic basis that have either a 
significant privacy impact on individuals or a privacy impact 
on a significant number or individuals. The bill included a 
limited waiver from certain requirements for national security 
reasons and to prevent the disclosure of other sensitive 
information.
---------------------------------------------------------------------------
    \19\ Pub. L. No. 96-354, 94 Stat. 1165 (1980) (codified at 5 U.S.C. 
Sec. Sec. 601 et seq.). The Regulatory Flexibility Act requires an 
agency to describe the impact of proposed and final regulations on 
small entities (such as small businesses) if the proposed regulation is 
expected to have a significant economic impact on a substantial number 
of small entities. The agency must prepare an initial regulatory 
flexibility analysis (IRFA) and the IRFA, or a summary thereof, must be 
published for public comment in the Federal Register together with the 
proposed rule. Similar requirements pertain to final rules. The Small 
Business Regulatory Enforcement Fairness Act of 1996 subjects the 
regulatory flexibility analysis to judicial review. Pub. L. No. 104-
121, Sec. 242, 110 Stat. 857, 865 (1966) (codified at 5 U.S.C. 
Sec. 611).
    \20\ Pub. L. No. 107-347, Sec. 208, 116 Stat. 2899, 2921 (requiring 
a federal agency inter alia to conduct a privacy impact assessment 
before developing or procuring an information technology system that 
collects, maintains or disseminates information in an identifiable 
form).
---------------------------------------------------------------------------
    Legislative History.--On June 9, 2005, Representative Steve 
Chabot (R-OH) introduced H.R. 2840 with Subcommittee Chairman 
Chris Cannon (R-UT) and Representatives Jerrold Nadler (D-NY) 
and William Delahunt (D-MA) as original cosponsors. Although no 
hearings were held on H.R. 2840 during the 109th Congress, the 
Subcommittee had previously held a joint hearing with the 
Subcommittee on the Constitution on similar legislation (H.R. 
338) during the 108th Congress on July 22, 2003.\21\ Testimony 
at that hearing was received from United States Senator Charles 
E. Grassley (R-IA); former Representative Bob Barr (R-GA) on 
behalf of the American Conservative Union; Laura Murphy, 
Director of the American Civil Liberties Union, and James X. 
Dempsey, Executive Director of the Center for Democracy & 
Technology. On May 17, 2006, the Subcommittee ordered H.R. 2840 
to be favorably reported by voice vote. On June 7, 2006, the 
Committee ordered the bill to be favorably reported, with an 
amendment, by voice vote. On Sept 25, 2006, H.R. 2840 was 
placed on the Union Calendar.
---------------------------------------------------------------------------
    \21\ Defense of Privacy Act and Privacy in the Hands of the 
Government: Joint Hearing on H.R. 338 Before the Subcomm. on Commercial 
and Administrative Law and the Subcomm. on the Constitution of the H. 
Comm. on the Judiciary, 108th Cong. (2003).
---------------------------------------------------------------------------

              STATE TAXATION AFFECTING INTERSTATE COMMERCE

H.R. 1956, the ``Business Activity Tax Simplification Act of 2005''

    Summary.--H.R. 1956, the ``Business Activity Tax 
Simplification Act of 2006,'' would provide a bright-line 
physical presence nexus requirement in order for states to 
collect net income taxes or other business activity taxes on 
multistate enterprises. H.R. 1956 amends Public Law 86-272,\22\ 
enacted in 1959, which prohibits states from imposing taxes on 
the net income of interstate sellers of tangible personal 
property if the only business activity within the state 
consists of the solicitation of certain sales orders. H.R. 1956 
lists the conditions that a business must meet in order to 
establish a physical presence for the purpose of a state 
imposing business activity taxes. It also specifies those 
conditions that should be disregarded in determining whether a 
business has established physical presence within a state. H.R. 
1956 would benefit interstate commerce by providing businesses 
a measure of jurisdictional certainty.
---------------------------------------------------------------------------
    \22\ Pub. L. No. 86-272, 73 Stat. 555 (1959) (codified, as amended, 
at 15 U.S.C. Sec. 381 et set. (2004)).
---------------------------------------------------------------------------
    Legislative History.--H.R. 1956 was introduced by 
Representative Bob Goodlatte (R-VA) on April 28, 2005. The 
Subcommittee held a hearing on the measure on September 27, 
2005. Witnesses who testified included: Carey Horne, President, 
ProHelp Systems, Inc.; Earl Ehrhart, State Representative, 
Georgia House, 36th District, National Chairman of the American 
Legislative Council; Joan Wagnon, Secretary of Revenue, State 
of Kansas, Chair, Multistate Tax Commission; and Lyndon D. 
Williams, Tax Counsel, Citigroup Corp. On December 13, 2005, 
the Subcommittee marked up H.R. 1956, and ordered it to be 
favorably reported, as amended, by voice vote. The Committee 
marked up the bill on June 28, 2006, and ordered it to be 
favorably reported, as amended, by voice vote. The bill was 
reported to the House on July 17, 2006 (H Rept. 109-575).

H.R. 1369, the ``To Prevent Certain Discriminatory Taxation of 
        Interstate Natural Gas Pipeline Property''

    Summary.--H.R. 1369 would prohibit discriminatory taxation 
of natural gas pipeline property. The bill describes acts that 
unreasonably burden and discriminate against interstate 
commerce and which effectively increase the costs of 
transporting natural gas throughout the different states. It 
would prevent states, political subdivisions and any other 
taxing authority in a state from assessing a higher ad valorem 
tax on interstate gas pipeline property than that assessed on 
other commercial or industrial property. It also grants 
jurisdiction to the U.S. district courts to determine claims of 
discriminatory state taxation and provide relief.
    Natural gas pipelines constitute an interstate 
transportation industry similar to that of railroads, trucking, 
and air carriers. But while Congress has passed legislation 
with respect to discriminatory tax treatment of property 
belonging to these other interstate industries, it has not 
acted with regard to natural gas pipeline transportation. For 
example, Congress passed the Railroad Revitalization and 
Regulatory Reform Act of 1976, which, in part, enjoined states 
from imposing discriminatory assessments and authorized the 
railroad industry to seek injunctive relief in federal court to 
eliminate such discriminatory state assessments. Since then, 
Congress has passed similar legislation for motor carrier 
transportation property and air carrier transportation property 
prohibiting discriminatory tax treatment.
    Legislative History.--H.R. 1369 was introduced by 
Subcommittee Chairman Chris Cannon (R-UT) on March 17, 2005. 
The Subcommittee held a hearing on the bill on October 6, 2005. 
Witnesses who testified at the hearing included: Mark 
Schroeder, Vice President and General Counsel, CenterPoint 
Energy Gas Transmission Company; Dr. Veronique de Rugy, 
Research Fellow, American Enterprise Institute for Public 
Policy Research; Harley Duncan, Executive Director, Federation 
of Tax Administrators; and Laurence Garrett, Senior Counsel, El 
Paso Corporation, on behalf of The Interstate Natural Gas 
Association of America.
    On June 15, 2006, the Subcommittee marked up H.R. 1369 and 
ordered the bill favorably reported without amendment by voice 
vote. The Committee marked up the bill on July 12, 2006 and 
ordered it to be favorably reported by voice vote. H.R. 1369 
was placed on the Union Calendar on Sept. 14, 2006. The 
legislation was not further considered prior to the end of the 
109th Congress.

H.R. 4019, ``To Amend Title 4 of the United States Code to Clarify the 
        Treatment of Self-Employment for Purposes of the Limitation on 
        State Taxation of Retirement''

    Summary.--H.R. 4019 amended Public Law 104-95 (as codified 
at 4 U.S.C. Sec. 114) to clarify the limitation on state 
taxation of retirement income with respect to workers who were 
self-employed. The legislation was intended to ensure that the 
retirement income of all retirees, whether they are employees, 
partners, or self-employed prior to retirement, is treated in 
the same manner.\23\
---------------------------------------------------------------------------
    \23\ Pub. L. No. 104-95, 109 Stat. 979 (codified at U.S.C. Sec. 114 
(1996)).
---------------------------------------------------------------------------
    Public Law 104-95 was enacted in order to prevent pensions 
and many other types of retirement income from being taxed both 
by the state wherein the retiree resides when he or she 
receives payment of the retirement income and by the source 
state where the retiree worked prior to retirement. Although 
Congress acknowledged that such double taxation of retirement 
income would be avoided to the extent that the retiree's state 
of residence provides a credit for the income taxes that the 
retiree has paid to the source state on the retirement income, 
it concluded that such state tax credits are not always 
available, particularly if the retiree resides in a state with 
no income tax.
    H.R. 4019 was intended to clarify that exemptions to 
payments made to retired employees apply to both retired 
employees and retired partners by specifically including 
written arrangements for retired partners. The bill makes clear 
that any written plan, program, or arrangement in effect at the 
time of retirement that provides for payments to a retired 
partner in recognition of prior service may qualify as exempt 
from nonresident state income taxation as long as such payments 
are made over ten years or more and are made in substantially 
equal periodic payments.
    H.R. 4019 was intended to make clear Congress's original 
intent when it passed section 114, to limit the taxation of 
retirement income to the state in which the retiree resides, 
whether the retirement payments are made to a retired employee 
or a retired partner. H.R. 4019 merely confirmed and continued 
this Congressional intent. H.R. 4019 also clarified the 
definition of substantially equal periodic payments to permit 
plan caps on retiree payments and cost of living adjustments 
and specified that the substantially equal periodic payments 
test would be satisfied when payments include components from 
both qualified and non-qualified plans. These modifications 
were intended to clarify existing law rather than substantively 
amend it.
    Legislative History.--Subcommittee Chairman Chris Cannon 
introduced H.R. 4019 on October 7, 2005. The Subcommittee held 
a hearing on the bill on December 13, 2005. Witnesses who 
testified at the hearing included: former Representative George 
W. Gekas (R-PA); Lawrence Portnoy, a retired partner with 
PricewaterhouseCoopers LLP; Stanley Arnold, former Commissioner 
of the Department of Revenue for the State of New Hampshire; 
and Harley Duncan, Executive Director, Federation of Tax 
Administrators. Following the hearing, the Subcommittee marked 
up the bill and ordered it favorably reported by voice vote 
without amendment.
    On June 7, 2006, the Committee marked up H.R. 4019 and 
reported it favorably by voice vote (H. Rept. 109-542). The 
House passed the legislation by voice vote, without amendment, 
on July 17, 2006. On July 24, 2006, the Senate unanimously 
passed H.R. 4019 without amendment. H.R. 4019 was signed into 
law by President George W. Bush on August 3, 2006 (Pub. L. No. 
109-264).

                       LEGAL SERVICES CORPORATION

H.R. 6101, ``Legal Services Corporation Improvement Act''

    Summary.--H.R. 6101, the ``Legal Services Corporation 
Improvement Act,'' would strengthen the independence of the 
Inspector General (IG) at the Legal Services Corporation (LSC). 
Specifically, the bill would amend the Legal Services Act to 
require nine of 11 members of the LSC Board of Directors to 
concur in the discharge of the Corporation's IG.
    There would appear to be an inherent conflict between any 
IG and the agency for which he or she serves. The IG is charged 
with oversight of the functioning of the agency and must, as a 
matter of cause, conduct investigations of the heads of the 
agency--the same people to whom he or she reports and must 
maintain a working relationship.
    Other agencies have apparently experienced similar issues 
with their IGs. To remedy the conflict in two organizations, 
the United States Postal Service and the United States Capitol 
Police, Congress created higher bars for dismissal than those 
proposed in H.R. 6101 for the IG at LSC. The Postal 
Reorganization Act requires agreement of seven out of nine 
members of the Board of Governors for dismissal, while the U.S. 
Capitol Police IG may be removed from office prior to the 
expiration of his term only by the unanimous vote of all of the 
voting members of the Capitol Police Board. H.R. 6101 is 
modeled after the removal processes for these two 
organizations.
    Legislative History.--On July 28, 2006, Subcommittee 
Chairman Cannon introduced H.R. 5974, a bill to amend the 
Inspector General Act of 1978 and the Legal Services 
Corporation Act to provide appropriate removal procedures for 
the Inspector General of the Legal Services Corporation, and 
for other purposes. Thereafter, Chairman Cannon introduced a 
substitute bill, H.R. 6101, the ``Legal Services Corporation 
Improvement Act,'' on September 19, 2006.
    On September 26, 2006, the Subcommittee held a hearing on 
H.R. 6101. Witnesses at the hearing included: Richard ``Kirt'' 
West, Inspector General, Legal Services Corporation; David 
Williams, Inspector General, United States Postal Service; and 
Frank Strickland, Chairman of the Board, Legal Services 
Corporation. The legislation was not further considered prior 
to the end of the 109th Congress.

                          OVERSIGHT ACTIVITIES


Oversight hearing list

------------------------------------------------------------------------
            Date/Serial No.                       Hearing title
------------------------------------------------------------------------
May 24, 2005/ 109-27...................  Joint Oversight Hearing on
                                          ``Economic Development and the
                                          Dormant Commerce Clause: the
                                          Lessons of Cuno v. Daimler
                                          Chrysler and Its Effect on
                                          State Taxation Affecting
                                          Interstate Commerce''.
June 7, 2005/ 109-42...................  Mutual Fund Trading Abuses.
June 28, 2005/ 109-145.................  Legal Services Corporation: A
                                          review of Leasing Choices and
                                          Landlord Relations.
July 27, 2005/ 109-55..................  Implementation of the
                                          Bankruptcy Abuse Prevention
                                          Act of 2005.
Nov. 1, 2005/ 109-71...................  Administrative Law, Process and
                                          Procedure Project.
March 30, 2006/ 109-97.................  10th Anniversary of the
                                          Congressional Review Act.
April 4, 2006/ 109-98..................  Personal Information Acquired
                                          by the Government from
                                          Information Resellers: Is
                                          There Need for Improvement?
April 26, 2006/ 109-132................  Reauthorization of the
                                          Department of Justice:
                                          Executive Office for United
                                          States Attorneys, Civil
                                          Division, Environment and
                                          Natural Resources Division,
                                          Executive Office for United
                                          States Trustees, and Office of
                                          the Solicitor General.
May 17, 2006/ 109-155..................  Privacy in the Hands of the
                                          Government: The Privacy
                                          Officer for the Department of
                                          Homeland Security and the
                                          Privacy Officer for the
                                          Department of Justice.
June 13, 2006/ 109-120.................  State Taxation of Interstate
                                          Telecommunications Services.
July 25, 2006/ 109-133.................  The 60th Anniversary of the
                                          Administrative Procedure Act:
                                          Where Do We Go From Here?
Nov. 14, 2006/109-152..................  The Administrative Law, Process
                                          and Procedure Project for the
                                          21st Century
Dec. 7, 2006...........................  The Arbitration Process of the
                                          National Football League
                                          Players Association
------------------------------------------------------------------------

Joint Oversight Hearing on ``Economic Development and the Dormant 
        Commerce Clause: the lessons of Cuno v. Daimler Chrysler and 
        its effect on state taxation affecting interstate commerce''

    Summary.--On October 19, 2004, the United States Court of 
Appeals for the Sixth Circuit issued an opinion in Cuno v. 
DaimlerChrysler, Inc. holding that portions of Ohio's tax code 
were unconstitutional on the ground that they violated the 
Dormant Commerce Clause.\24\ At issue was Ohio's franchise tax 
credit for companies that chose to ``[purchase] new 
manufacturing machinery and equipment during the qualifying 
period, provided that the new manufacturing machinery and 
equipment are installed in [Ohio].'' \25\ Under the terms of 
the tax credit and a related property tax exemption,\26\ 
DaimlerChrysler was to obtain approximately $280 million in tax 
relief over ten years for investing approximately $1.2 billion 
in a new vehicle assembly plant that would generate 
approximately 5,000 new jobs in Toledo, Ohio.\27\
---------------------------------------------------------------------------
    \24\ Cuno v. DaimlerChrysler, Inc., 386 F.3d 738 (6th Cir. 2004), 
vacated by and remanded by, 126 S.Ct. 1854 (2006) (While not actually a 
provision of the Constitution, the Dormant Commerce Clause is a 
doctrine of Congressional power inferred by the Supreme Court that 
restricts the ability of States to legislate in certain areas involving 
interstate commerce.)
    \25\ Ohio Rev. Code Ann. Sec. 5733.33(B)(1).
    \26\ Cuno, 386 F.3d at 748-49 (The property tax exemption was 
upheld against challenges under the Dormant Commerce Clause and the 
Equal Protection clause of the Ohio Constitution.)
    \27\ Id. at 741; see also Gregory Castanias, National Movement 
Against Economic-Development Incentives Makes Inroads in the Sixth 
Circuit and Raises Questions About Similar Incentives Elsewhere, Mondaq 
Bus. Briefing, Feb. 7, 2005, available at http://www.mondaq.com/
article.asp?articleid=30851&searchresults=1.
---------------------------------------------------------------------------
    Apart from the question of the constitutionality of the 
Ohio investment tax credit is the issue of whether such credits 
make sound public policy. Approximately forty states have 
similar investment tax credits.\28\ The reasons that a state 
might offer such a credit are many, but underlying them all is 
the notion that such credits make it attractive for businesses 
to invest in their states, thus creating higher tax revenue for 
the state in the form of property and payroll taxes. From a 
business perspective, the existence of tax credits are just one 
of several factors that influence a company's decision to 
expand or move its operations from one state or locale to 
another. Other factors include the cost of labor, the cost of 
land, the overall regulatory and tax environment, access to 
resources, costs of shipping, as well as historical factors 
such as a business's ties to a particular community. And while 
a tax incentive package usually represents a small amount of 
money relative to the company's proposed investment in a 
community,\29\ it can help provide a rationale for staying in a 
particular location that otherwise would make less economic 
sense for the company.
---------------------------------------------------------------------------
    \28\ Castanias, supra note 28.
    \29\ For example, DaimlerChrysler was to receive $280 million in 
tax relief over ten years for investing approximately $1.2 billion in a 
new vehicle assembly plant that would generate approximately 5,000 new 
jobs in Toledo, Ohio.
---------------------------------------------------------------------------
    On May 24, 2005 the Subcommittee, together with the 
Subcommittee on the Constitution, held a joint oversight 
hearing on ``Economic Development and the Dormant Commerce 
Clause: the Lessons of Cuno v. DaimlerChrysler and Its Effect 
on State Taxation Affecting Interstate Commerce.'' Witnesses 
who testified at the hearing included: Lieutenant Governor 
Bruce Johnson of the State of Ohio; Michele R. Kuhrt, Director 
of Taxes and Financial Administration for Lincoln Electric; 
Professor Walter Hellerstein from University of Georgia School 
of Law; and Professor Edward A. Zelinsky from Benjamin N. 
Cardozo School of Law.
    The hearing provided an opportunity for the Subcommittees 
to explore the scope of the Dormant Commerce Clause vis-a-vis 
state tax credits, and the implications of the Sixth Circuit's 
decision in Cuno v. DaimlerChrysler on that body of law. The 
hearing also addressed Congress' ability to pass legislation 
that renders such State statutory schemes lawful and examined 
the impact these tax credits have on promoting business 
development in economically depressed areas.

Mutual fund trading abuses

    Summary.--In the summer of 2003, various trading abuses 
committed by many well-known mutual fund companies began to 
surface. As a result of numerous regulatory investigations 
commenced thereafter, the mutual fund industry suffered 
``through its most serious crisis of faith in more than six 
decades.'' \30\ These abuses included, among other activities, 
market timing, late trading, and exorbitant fund fees. Market 
timing can constitute illegal conduct if, for example, it takes 
place as a result of undisclosed agreements between investment 
advisers (firms that may manage mutual fund companies) and 
favored customers (such as hedge funds) in contravention of 
stated fund trading limits. Frequent trading can harm mutual 
fund shareholders because it lowers fund returns and increases 
transaction costs. According to one estimate, market timing 
abuses may have resulted in $5 billion in annual losses.\31\ 
Late trading involves the practice of trading shares after the 
markets have closed so that the trader can take advantage of 
information that becomes available after the closing.\32\
---------------------------------------------------------------------------
    \30\ Patrick McGeehan, A Scandal, but Business Booms, N.Y. Times, 
Jan. 11, 2004, at 25.
    \31\ U.S. Government Accountability Office, Report to Congressional 
Requesters: Mutual Trading Abuses--Lessons Can Be Learned from SEC Not 
Having Detected Violations at an Earlier Stage, GAO-05-313, at 4-5 
(Apr. 2005).
    \32\ Id. at 10.
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    Mutual fund companies and other participants implicated in 
the scandal included Canary Capital, Janus Capital Group, Bank 
of America, Alliance Capital Management, Prudential Securities, 
Millennium Partners, Fred Alger Management, Putnam Investments, 
PBHG Funds, Massachusetts Financial Services, Security Trust, 
Franklin Resources, and Invesco Funds Group.\33\
---------------------------------------------------------------------------
    \33\ See, e.g., Jenny Anderson, Franklin Hit with Trading Charges, 
N.Y. Post, Feb. 5, 2004, at 37; Patrick McGeehan, A Scandal, but 
Business Booms, N.Y. Times, Jan. 11, 2004, at 28; Riva D. Atlas, Mutual 
Fund Ex-Executive Is Sentenced to Prison, N.Y. Times, Dec. 18, 2003, at 
C1 (reporting that a senior executive at Fred Alger Management received 
a prison sentence for tampering with evidence sought by the New York 
Attorney General in connection with the investigation of improper 
trading in mutual funds); Diana B. Henriques, Fund Compliance Plans 
Ignored Trade Timing, N.Y. Times, Dec. 11, 2003, at C1 (reporting on 
allegations that a small group of Prudential brokers ``were placing 
hundreds of short-term trades in defiance of the funds' rules); 
Associated Press, Guilty Plea in Case at Security Trust, N.Y. Times, 
Dec. 10, 2003'', at C63; Landon Thomas Jr., Memo Shows MFS Funds Let 
Favored Clients Trade When Others Couldn't, N.Y. Times, Dec. 9, 2003, 
at C1; Bloomberg News, S.E.C. Charges Mutuals.com and 3 of Its Leaders 
with Fraud, N.Y. Times, Dec. 5, 2003, at C6; Riva Atlas & David 
Barboza, Funds Scandal Hits Invesco and Founder of Strong, N.Y. Times, 
Dec. 3, 2003, at C1 (reporting on Richard Strong's resignation of 
Invesco Funds Group, in light of the ``rapidly expanding investigation 
of improper trading'').
---------------------------------------------------------------------------
    Although there was extensive awareness of illegal market 
timing for years, the SEC failed to act. Perhaps even more 
problematic was the fact that many of the initial 
investigations and prosecutorial actions were commenced by 
state officials rather than the SEC. On September 3, 2003, New 
York Attorney General Elliot Spitzer announced that Canary 
Capital, a hedge fund, agreed to pay $40 million in fines and 
restitution relating to improper trading of mutual funds, 
without admitting any wrongdoing.\34\ This would be the first 
of many regulatory enforcement efforts undertaken by state 
officials.
---------------------------------------------------------------------------
    \34\ Patrick McGeehan, A Scandal, but Business Booms, N.Y. Times, 
Jan. 11, 2004, at 25.
---------------------------------------------------------------------------
    In February 2004, Chairman Sensenbrenner and Ranking Member 
Conyers asked the GAO to undertake a comprehensive review of 
the SEC's apparent failure to proactively detect and prevent 
illegal activities in the mutual fund industry.\35\ In 
addition, the GAO was requested to focus on the efforts of the 
NASD (National Association of Securities Dealers) to detect 
fraud in the various disclosure documents that are required to 
be filed with it by mutual fund companies.\36\
---------------------------------------------------------------------------
    \35\ Letters from F. James Sensenbrenner, Jr., Chairman of the 
House Judiciary Committee, to David M. Walker, Comptroller General of 
the United States (Feb. 3, 2004); Letter from John Conyers, Jr., 
Ranking Member of the House Judiciary Committee, to David M. Walker, 
Comptroller General of the United States (Feb. 6, 2004) (on file with 
the Subcommittee).
    \36\ Id.
---------------------------------------------------------------------------
    On June 7, 2005, the Subcommittee held an oversight hearing 
on mutual fund trading abuses and the results of the GAO's 
study of these abuses. Witnesses at the hearing included: 
Richard J. Hillman, Director, Financial Markets and Community 
Investment, GAO; Lori A. Richards, Director, Office of 
Compliance Inspections and Examinations, U.S. Securities and 
Exchange Commission (SEC); the Honorable William Francis 
Galvin, Secretary of the Commonwealth of Massachusetts; and 
Professor Eric W. Zitzewitz of Stanford University Graduate 
School of Business. The hearing provided a forum for the GAO to 
report on the results of two investigations it conducted into 
the failure of the SEC to uncover billions of dollars of mutual 
fund trading fraud abuses.

Legal Services Corporation: A review of leasing choices and landlord 
        relations

    Summary.--In 1998, the Legal Services Corporation (LSC) 
began searching for a permanent location. Members of the LSC 
Board created a separate organization known as the Friends of 
Legal Services Corporation (FoLSC), which would attempt to 
purchase a building for LSC to avoid certain budgetary scoring 
requirements of the Office of Management and Budget (OMB). 
FoLSC received a grant of $4 million from the Bill and Melinda 
Gates Foundation to aid in the project. On July 2, 2002, FoLSC 
completed the purchase of 3333 K Street, Washington, D.C., a 
five-story commercial building with 60,000 square feet. LSC 
agreed to enter into a ten-year lease agreement to occupy 
45,000 square feet of this property, for $38 per square foot. 
During the search and acquisition of the building, many of the 
original aims of the project seem to have been compromised, 
with detrimental results to the LSC.
    The lease entered into by LSC would appear to be 
unacceptable by normal business entities in a commercial 
context. Pursuant to concerns raised by the Subcommittee as 
well as by LSC staff and management, LSC Inspector General Kirt 
West initiated an investigation into the financial implications 
of the lease that was entered into between LSC and FoLSC. Based 
on his investigation, the Inspector General found that LSC was 
paying significantly more than the market rate for the 
leasehold. Depending on a yet to be determined variable as to 
whether the build-out allowance would be fully utilized, his 
report concluded that LSC was paying between $1.23 million to 
$1.89 million in rent above what the market would bear for the 
square footage occupied over the next 10 years.\37\ The lease 
contained no renewal option, nor any provision for eventual 
ownership of the building to transfer to LSC.\38\
---------------------------------------------------------------------------
    \37\ Report on the Financial Implications of the 3333 K Street 
Lease by the Inspector General to the LSC Board of Directors (Apr. 22, 
2005). The Report utilized two independent appraisals contracted by the 
Inspector General. Although a $2 million build-out allowance was 
incorporated into the lease (albeit atypical of commercial lease 
agreements), there was no provision for any unused funds to be 
transferred back to LSC, the tenant.
    \38\ Id. at 2.
---------------------------------------------------------------------------
    The Subcommittee held an oversight hearing on LSC on June 
28, 2005 to examine the fiscal soundness of a lease entered 
into by LSC, potentially false representations made by its 
landlord, FoLSC, and the relationship between LSC and its 
landlord. Witnesses at the hearing included: Thomas Smegal, 
Chairman of the Board of FoLSC; Frank B. Strickland, Chairman 
of the Board of Directors of LSC; and R. Kirt West, LSC 
Inspector General.

Implementation of the Bankruptcy Abuse Prevention Act of 2005

    Summary.--The Bankruptcy Abuse Prevention and Consumer 
Protection Act of 2005 (the Act) \39\ was signed into law by 
President George W. Bush on April 20, 2005. Pursuant to section 
1501, most of the Act's provisions become effective on October 
17, 2005.
---------------------------------------------------------------------------
    \39\ Pub. L. No. 109-8, 119 Stat. 23 (2005).
---------------------------------------------------------------------------
    The Act represents one of the most comprehensive overhauls 
of the Bankruptcy Code in more than 25 years, particularly with 
respect to its consumer bankruptcy reforms. These consumer 
bankruptcy reforms include, for example, the establishment of a 
means test mechanism to determine a debtor's ability to repay 
debts and the requirement that consumer debtors receive credit 
counseling prior to filing for bankruptcy relief.
    The Act directs the Executive Office for United States 
Trustees (EOUST), which is a component of the Justice 
Department, and the Judicial Conference of the United States to 
perform various tasks to facilitate the Act's implementation. 
These responsibilities include the issuance of rules, forms, 
guidelines, and procedures.
    On July 27, 2005, the Subcommittee held a hearing on the 
implementation of the Act. The hearing provided an opportunity 
for the Subcommittee to examine the efforts EOUST and the 
Judicial Conference had made with respect to fulfilling their 
enhanced responsibilities under the Act. Witnesses at the 
hearing included: Clifford J. White III, EOUST Acting Director; 
Honorable A. Thomas Small, United States Bankruptcy Judge for 
the Eastern District of North Carolina, on behalf of Judicial 
Conference of the United States; Travis B. Plunkett, on behalf 
of the Consumer Federation of America, National Consumer Law 
Center, and U.S. Public Interest Research Group; and George 
Wallace, who appeared on behalf of the Coalition for the 
Implementation of Bankruptcy Reform.

Administrative Law, Process and Procedure Project

    Summary.--In light of the fact that the Administrative 
Procedure Act (APA) \40\ was enacted more than 60 years ago, 
concerns have been presented as to whether the APA is 
sufficiently adaptable to accommodate current technological 
advances and policy developments (e.g., privacy versus law 
enforcement, globalization of standards, interagency 
redundancy). Other problematic trends include the absence of 
transparency at certain stages of the rulemaking process, the 
increasing incidence of agencies publishing final rules without 
having these rules first promulgated on a proposed basis, the 
apparent stultification of the rulemaking process, and the need 
for more consistent enforcement by agencies.\41\ Potentially 
positive developments include increased opportunities for 
fostering public comment through e-rulemaking and agencies' use 
of the Internet to promote greater compliance by the public and 
private sectors. Additional important issues concern Congress's 
role in its oversight of the rulemaking process and whether 
current laws, such as the Congressional Review Act \42\ and the 
Regulatory Flexibility Act,\43\ have resolved the problems they 
were intended to address.
---------------------------------------------------------------------------
    \40\ 5 U.S.C. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372, 
7521 (2002).
    \41\ See, e.g., Regulatory Reform: Prior Reviews of Federal 
Regulatory Process Initiatives Reveal Opportunities for Improvements, 
U.S. Government Accountability Office, GAO-05-939 (2005).
    \42\ 5 U.S.C. Sec. Sec. 801-08 (2002).
    \43\ 5 U.S.C. Sec. Sec. 601-12 (2002).
---------------------------------------------------------------------------
    In anticipation of funds being appropriated for the 
Administrative Conference of the United States (ACUS) during 
the 109th Congress, the Subcommittee coordinated the 
Administrative Law, Process and Procedure Project. As 
authorized by Chairman F. James Sensenbrenner, Jr., the Project 
consists of a comprehensive study of the state of 
administrative law, process and procedure in our nation. A 
description of the Project was included in the Oversight Plan 
for the 109th Congress approved by the Committee on the 
Judiciary on January 26, 2005.\44\ The Project will culminate 
with a detailed report highlighting recommendations for 
legislative proposals and suggested areas for further research 
and analysis to be considered by ACUS. The Subcommittee is 
being assisted by the Congressional Research Service (CRS) in 
the conduct of the Project.\45\
---------------------------------------------------------------------------
    \44\ Oversight Plan for the 109th Congress, Committee on the 
Judiciary, at 5 (Jan. 26, 2005), available at http://
judiciary.house.gov/media/pdfs/printers/109th/
109th%20Oversight%20Plan.pdf.
    \45\ Chairman Sensenbrenner and Ranking Member Conyers requested 
CRS to have Mr. Rosenberg provide legal guidance, analysis and research 
to the Subcommittee staff in identifying significant administrative 
process issues for the project as well as assistance in the 
organization of the necessary outreach support in the academic and 
professional communities.
---------------------------------------------------------------------------
    The Project's objective is to conduct a nonpartisan, 
academically credible analysis of administrative law, process 
and procedure. The Project will focus on process, not policy 
concerns. General areas of study are anticipated to include: 
(1) public participation in the rulemaking process; (2) 
congressional review of rules; (3) presidential review of 
agency rulemaking; (4) judicial review of rulemaking; (5) the 
agency adjudicatory process; (6) the utility of regulatory 
analysis and accountability requirements; and (7) the role of 
science in the regulatory process.
    On November 1, 2005, the Subcommittee held a hearing on the 
Project. The hearing provided an opportunity for the 
Subcommittee to be briefed by Morton Rosenberg, Esq., 
Specialist in American Public Law at the American Law Division 
of CRS, regarding the status of the Project. It also served as 
a forum for J. Christopher Mihm, Director of Strategic Issues 
at GAO, to share his office's expertise regarding its analysis 
of subject matters of relevance to the Project and 
opportunities for collaboration. In addition, Professor Jeffrey 
S. Lubbers, Professor-Fellow in Law and Government Program, 
Washington College of Law, American University, explained the 
role that ACUS could play in implementing the Project's 
recommendations for further review and analysis. Professor Jody 
Freeman of Harvard Law School provided a status report on her 
ongoing empirical study of judicial review of agency 
regulations.

10th Anniversary of the Congressional Review Act

    Summary.--Ten years ago, in 1996, Congress passed the 
Congressional Review Act (``CRA''). The Act was a result of a 
desire for more active congressional control over a rapidly 
growing body of administrative rules.\46\ The CRA established a 
mechanism for Congress to review and disapprove Federal agency 
rules by using an expedited legislative process. Prior to the 
CRA, Congress had historically employed various means to assert 
its authority over agencies.\47\ Recognizing that Congress must 
conform to the constitutional bicameral requirement and the 
Presentment clause, the CRA requires that rules be disapproved 
by a joint resolution of both houses, then presentment to the 
President for signature. It thus follows the approach taken in 
the Rules Enabling Act (28 U.S.C. Sec. 2072 et seq.), under 
which the Supreme Court has for many years promulgated rules of 
practice and procedure and rules of evidence for the Federal 
courts subject to a review that has often been exercised by the 
Congress.\48\
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    \46\ Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA), Pub. L. No. 104-121, Subtitle E, 110 Stat. 857-874.
    \47\ A popular method, particularly from the early 1970s through 
1983 was the ``legislative veto'' under which an enabling statute 
sometimes provided the rules promulgated under it were subjected to 
reversal if one or both of the Houses passed a resolution repealing the 
Executive Branch's action. In 1983, however, the Supreme Court struck 
down the legislative vote in INS v. Chadha, 462 U.S. 919, on the 
grounds that when Congress acted ``legislatively'' it had to conform to 
the dictates of the bicameral requirement and Presentment Clause. See 
U.S. Const. art. I, Sec. 7, cl. 2. Because the legislative veto was a 
legislative act that did not adhere to these provisions, it violated 
the Constitutional design for the separation of powers.
    \48\ Despite passage of the Congressional Review Act, some pressure 
continues for even more congressional responsibility in the oversight 
of agency rulemaking, as evidenced from testimony received by the 
Subcommittee during a hearing on the role of Congress in monitoring 
administrative rulemaking during the 104th Congress. Role of Congress 
in Monitoring Administrative Rulemaking: Hearing on H.R. 47, H.R. 2727, 
and H.R. 2990 Before the Subcomm. On Commercial and Administrative Law 
of the House Comm. On the Judiciary, 104th Cong. 2nd Sess. 104-93 
(1996). The hearing considered three bills, which provided in varying 
degree for congressional approval of administrative rules before they 
could become formally effective.
---------------------------------------------------------------------------
    Since the enactment of the CRA, over 41,828 major and non-
major rules have been reported by Administrative agencies and 
have became effective.\49\ To date, a total of 37 joint 
resolutions of disapproval have been introduced in both houses 
of Congress relating to 28 rules.\50\
---------------------------------------------------------------------------
    \49\ General Accounting Office, Reports on Federal Agency Major 
Rules, available at http://www.gao.gov/decisions/majrule/majrule.htm.
    \50\ This Congress, four joint resolutions have been introduced, 
two in the House and two in the Senate. H.J. Res. 23 introduced by Rep. 
Herseth (D-SD) and S.J. Res. 4, introduced by Sen. Conrad (D-ND) to 
disapprove a Department of Agriculture rule that establishes minimal 
risk zones for introduction of mad cow disease. H.J. Res. 56, 
introduced by Rep. Meehan (D-MA) and S.J. Res. 20, introduced by Sen. 
Leahy (D-VT) to disapprove an EPA rule regarding the removal of coal 
and oil-fired generating units from a list of major sources of 
hazardous pollutants.
---------------------------------------------------------------------------
    Over the ten years, only once has the CRA been used to 
disapprove a rule.\51\ It has become apparent that the reason 
this one rule was disapproved was more due to a convergence of 
special circumstances that are unlikely to happen consistently, 
than as an example of how the CRA can be effectively used to 
disapprove rules.\52\
---------------------------------------------------------------------------
    \51\ S.J. Res. 16, 107th Cong. (2001)(enacted as Pub. L. No 107-52 
(2001).
    \52\ The OSHA ergonomic standards were controversial from the first 
publication in 1993 of the initial proposal for rulemaking. There was 
Congressional opposition to the standards as well, which led to riders 
prohibiting OSHA from promulgating proposed or final ergonomic rules 
during fiscal years 1995, 1996 and 1998. OSHA issued its final standard 
in 2000 after Congress was unable to pass another rider in that year's 
appropriations. Shortly after the rule was issued and became effective, 
control of the White House changed parties. Therefore, there was 
control of both Houses of Congress and the Presidency by the same 
party. Longstanding opposition of the rule by those in control of 
Congress and a President who was willing to seek the disapproval of a 
rule enacted at the end of the term of a previous administration.
---------------------------------------------------------------------------
    Congress has not used the CRA to disapprove a rule since 
2001, though it has introduced joint resolutions regarding 
different agency rulemakings. A number of times, joint 
resolutions have been introduced in an effort to pressure the 
agency involved to modify or withdraw the rule.\53\ This shows 
another effect of the CRA even when a joint resolution is not 
passed.
---------------------------------------------------------------------------
    \53\ The disapproval mechanism was utilized by Representative 
Wicker (R-MS) to affect a compromise with OSHA regarding the rule 
setting exposure limits on methylene chloride by introducting H.J. Res. 
67, 105th Cong. (1997), disapproving the OSHA rule. The introduction of 
the resolution encouraged OSHA to negotiate with Representative Wicker, 
who was able to include a provision on the FY 1998 Labor, HHS and 
Education appropriations requiring OSHA to provide on-site assistance 
for companies to help comply with the new rules.
---------------------------------------------------------------------------
    On March 30, 2006, the Subcommittee held an oversight 
hearing recognizing the 10th anniversary of the signing of the 
Congressional Review Act. Witnesses at the hearing included: 
John V. Sullivan, Parliamentarian of the United States House of 
Representatives, only the second time in history that a sitting 
parliamentarian has testified in front of a House committee. 
The other witnesses were J. Christopher Mihm, Managing Director 
for Strategic Issues at the U.S. General Accounting Office; 
Morton Rosenberg, Specialist in American Public Law at the 
Congressional Research Service; and Todd Gaziano, Director of 
the Center for Legal & Judicial Studies at The Heritage 
Foundation. The hearing provided an opportunity to discuss how 
the CRA has been used over the ten years since its enactment, 
the effectiveness as a tool in congressional oversight, and the 
current reach of the CRA in the rulemaking process.

Personal information acquired by the Government from information 
        resellers: Is there need for improvement?

    Summary.--In 2005, the personal financial records of more 
than 163,000 consumers in ChoicePoint's database were 
compromised.\54\ As a result of that data breach, approximately 
800 cases of identity theft occurred.\55\ LexisNexis, another 
information reseller, also experienced a major data breach in 
2005 that affected approximately 310,000 individuals.\56\ 
According to an information security expert, ``a small but 
growing market for the type of raw consumer information that 
has been pilfered from ChoicePoint, LexisNexis and other 
general data aggregators'' was developing.\57\
---------------------------------------------------------------------------
    \54\ Press Release, Federal Trade Commission, ChoicePoint Settles 
Data Security Breach Charges; to Pay $10 Million in Civil Penalties, $5 
Million for Consumer Redress, at 1 (Jan. 26, 2006). According to 
ChoicePoint, the private information of Americans in ``all 50 states 
may have been affected by the breach of the company's credentialing 
process,'' including 830 residents of Wisconsin. Harry R. Weber, 
Identity Theft Scam Far-Reaching; People in All States Possibly 
Affected, with 830 in Wisconsin, Milwaukee Journal Sentinel Online, 
Feb. 21, 2005, at http://www.jsonline.com/bym/news/feb05/303661.asp.
    \55\ Press Release, Federal Trade Commission, ChoicePoint Settles 
Data Security Breach Charges; to Pay $10 Million in Civil Penalties, $5 
Million for Consumer Redress, at 1 (Jan. 26, 2006).
    \56\ See Brian Krebs, Computers Seized in Data-Theft Probe, 
Washingtonpost.com, May 19, 2005, at (reporting that the ``310,000 
personal records had been accessed over a series of weeks''); Jonathan 
Drim, LexisNexis Data Breach Bigger Than Estimated, 310,000 Consumers 
May Be Affected, Firm Says, Wash. Post, Apr. 13, 2005, at E1.
    \57\ Tom Zeller, Jr., Black Market in Credit Card Thrives on Web, 
N.Y. Times, June 21, 2005, at A1.
---------------------------------------------------------------------------
    In addition to the security of personal information data 
that Federal agencies acquire from information resellers and 
others, a related concern pertains to the accuracy of such 
information, especially when it is acquired from the private 
sector. In the absence of data quality, an American may be 
mistakenly denied a job, subjected to additional screening at 
an airport, or, even worse, erroneously placed on a criminal or 
terrorist watch list.
    Reacting to these problematic events and concerns, House 
Judiciary Committee Chairman F. James Sensenbrenner, Jr., 
Ranking Member John Conyers, Jr., Constitution Subcommittee 
Chairman Steve Chabot, and Subcommittee Ranking Member Jerrold 
Nadler requested the GAO to ``investigate issues arising from 
the Federal government's reliance on and contributions to 
commercially available databases to provide information for use 
by law enforcement and in other important domestic functions.'' 
\58\ In response to this request and similar requests received 
from other Members of Congress and Committees,\59\ GAO prepared 
a comprehensive draft report with recommendations for 
legislative action.
---------------------------------------------------------------------------
    \58\ Letter from F. James Sensenbrenner, Jr., Chairman, Committee 
on the Judiciary, U.S. House of Representatives, et al. to David M. 
Walker, Comptroller General of the United States, U.S. Government 
Accountability Office, at 1 (Mar. 9, 2005) (on file with the Commercial 
and Admin. Law and Constitution Subcommittees).
    \59\ Joining Senator Bill Nelson (D-FL) as requesters were three 
members of the House Committee on Homeland Security: Ranking Member 
Bennie G. Thompson (D-MS), Intelligence, Information Sharing, and 
Terrorism Assessment Subcommittee Ranking Member Zoe Lofgren (D-CA), 
and Economic Security, Infrastructure Protection, and Cybersecurity 
Subcommittee Ranking Member Loretta Sanchez (D-CA). U.S. Government 
Accountability Office, Draft Report: Privacy-Opportunities Exist for 
Agencies and Resellers to More Fully Adhere to Key Principles, GAO-06-
421, at 72-73 (Apr. 2006).
---------------------------------------------------------------------------
    The Subcommittee, together with the Subcommittee on the 
Constitution, held a joint oversight hearing on ``Personal 
Information Acquired by the Government from Information 
Resellers: Is There Need for Improvement?'' on April 4, 2006. 
Witnesses at the hearing included: Linda D. Koontz, Director 
for Information Management Issues, GAO; Maureen Cooney, Acting 
Chief Privacy Officer, U.S. Department of Homeland Security; 
Professor Peter P. Swire from the Moritz College of Law of the 
Ohio State University; and Stuart K. Pratt, President and Chief 
Executive Officer of the Consumer Data Industry Association. 
The hearing provided an opportunity for the Subcommittees to 
have GAO present its findings and recommendations as well as 
allow representatives from the public and private sector to 
comment on the report.

Reauthorization of the Department of Justice: Executive Office for 
        United States Attorneys, Civil Division, Environment and 
        Natural Resources Division, Executive Office for United States 
        Trustees, and Office of the Solicitor General

    Summary.--The Subcommittee has oversight jurisdiction over 
five components of the Justice Department (DOJ): Executive 
Office for United States Attorneys, Civil Division, Environment 
and Natural Resources Division, Executive Office for United 
States Trustees, and Office of the Solicitor General.
    The United States Attorneys serve as the nation's principal 
litigators under the direction of the Attorney General. They 
are stationed throughout the United States, Puerto Rico, the 
Virgin Islands, Guam, and the Northern Mariana Islands. United 
States Attorneys are appointed by, and serve at the discretion 
of, the President of the United States, with advice and consent 
of the United States Senate. Each United States Attorney is the 
chief Federal law enforcement officer of the United States 
within his or her particular jurisdiction.
    One of six litigating divisions within DOJ, the Civil 
Division represents the United States, its departments and 
agencies, Members of Congress, Cabinet officers, the Federal 
judiciary, other Federal employees, and the people of the 
United States. The Civil Division is comprised of seven 
branches: Commercial Litigation, Federal Programs, Torts, 
Office of Immigration Litigation, Office of Consumer 
Litigation, Office of Management Programs, and Appellate Staff. 
The Division litigates cases in Federal, state, and foreign 
courts.
    During the first 50 years since its establishment in 1909, 
the primary focus of the Environment and Natural Resource 
Division was litigating Federal lands, water, and Indian 
disputes. As the nation grew and developed, the Division's 
areas of responsibility expanded to include litigation 
concerning the protection, use, and development of national 
natural resources and public lands, wildlife protection, Indian 
rights and claims, cleanup of national hazardous waste sites, 
the acquisition of private property for federal use, and 
defense of environmental challenges to government programs and 
activities. The Division is composed of the following sections: 
Environmental Crimes; Environmental Enforcement; Environmental 
Defense; Natural Resources; Wildlife and Marine Resources; 
General Litigation; Indian Resources; Land Acquisition; Law & 
Policy; and Appellate.
    The United States Trustee Program is responsible for 
overseeing the administration of bankruptcy cases and private 
trustees. The Program is overseen by the Executive Office for 
United States Trustees, which provides policy and management 
direction to United States Trustees. The Program operates 
through a system of 21 regions. Specific responsibilities of 
the United States Trustees include appointing and supervising 
private trustees who administer Chapter 7, 12, and 13 
bankruptcy estates; taking legal action to enforce the 
requirements of the Bankruptcy Code and to ferret out fraud and 
abuse; referring matters for investigation and criminal 
prosecution when appropriate; ensuring that bankruptcy estates 
are administered promptly and efficiently, and that 
professional fees are reasonable; appointing and convening 
creditors' committees in Chapter 11 business reorganization 
cases; and reviewing disclosure statements and retention 
applications for professional persons retained to represent 
certain interested parties in bankruptcy cases.
    The major function of the Office of the Solicitor General 
(OSG) is to supervise and conduct government litigation in the 
United States Supreme Court. Virtually all such litigation is 
channeled through the OSG and is actively conducted by the 
Office. The United States is typically involved in 
approximately two-thirds of cases that the United States 
Supreme Court decides on the merits each year. The OSG 
determines the cases in which Supreme Court review will be 
sought by the government and the positions the government will 
take before the Court. The OSG's staff attorneys participate in 
preparing petitions, briefs, and other papers filed by the 
government in its Supreme Court litigation. Those cases not 
argued by the Solicitor General personally are assigned either 
to an attorney in the Office or to another government attorney. 
Another function of the OSG is to review all cases decided 
adversely to the government in the lower courts to determine 
whether they should be appealed and, if so, what position 
should be taken. The Solicitor General also determines whether 
the government will participate as an amicus curiae, or 
intervene, in cases in any appellate court.
    The Subcommittee conducts an oversight hearing on the DOJ 
components within its jurisdiction generally on an annual 
basis. On April 26, 2006, the Subcommittee conducted a hearing 
on these components. The hearing provided an opportunity for 
the Subcommittee to consider issues pertinent to proposed 
legislation reauthorizing the DOJ and the Administration's 
pending Fiscal Year 2007 budgetary request. Witnesses appearing 
on behalf of DOJ at the hearing included: Michael Battle, 
Director, Executive Office for United States Attorneys; Peter 
D. Keisler, Assistant Attorney General, Civil Division; Matthew 
J. McKeown, Principal Deputy Assistant Attorney General for the 
Environment and Natural Resources Division on behalf of 
Assistant Attorney General Sue Ellen Wooldridge; and Clifford 
J. White, III, Acting Director, Executive Office for United 
States Trustees.

Privacy in the hands of the Government: The Privacy Officer for the 
        Department of Homeland Security and the Privacy Officer for the 
        Department of Justice

    Summary.--The Privacy Act of 1974 regulates how Federal 
agencies may use personal information they collect from 
individuals.\60\ These agencies are generally prohibited from 
disclosing personally identifiable information to other Federal 
or state agencies or to any other person,\61\ subject to 
certain specified exceptions.\62\ An agency that releases such 
information in violation of the Privacy Act may be sued for 
damages sustained by an individual as a result of such 
violation, under certain circumstances.\63\ In addition, the 
Privacy Act grants individuals the right to have agency records 
maintained on themselves corrected upon a showing that such 
records are inaccurate, irrelevant, out-of-date, or 
incomplete.\64\
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    \60\ 5 U.S.C. Sec. 552a (2002). According to one treatise, the 
Privacy Act ``gives individuals greater control over gathering, 
dissemination, and ensuring accuracy of information collected about 
themselves by agencies'' and that its ``main purpose'' is to ``forbid 
disclosure unless it is required by the Freedom of Information Act.'' 
Admin. Conf. of the U.S., Fed. Admin. Proc. Sourcebook--Statutes and 
Related Materials 863 (2d ed. 1992).
    \61\ 5 U.S.C. Sec. 552a(b) (2002). The types of information that 
may not be disclosed include medical, educational, criminal, financial, 
and employment records. 5 U.S.C. Sec. 552a(a)(4) (2002).
    \62\ The Privacy Act, for example, excepts disclosures that 
constitute a ``routine use'' of such information by an agency that ``is 
compatible with the purpose for which it was collected.'' 5 U.S.C. 
Sec. 552a(d) (2002). It also permits disclosure for law enforcement 
purposes, in response to a Congressional request, pursuant to court 
order, for the purpose of carrying out a census, or to a consumer 
reporting agency. 5 U.S.C. Sec. 552a(b) (2002).
    \63\ 5 U.S.C. Sec. 552a(g)(4) (2002).
    \64\ 5 U.S.C. Sec. 552a(d) (2002).
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    Technological developments have increasingly facilitated 
the collection and dissemination of personally identifiable 
information and have correspondingly increased the potential 
for misuse of such information.\65\ Compliance with the Privacy 
Act by Federal agencies, however, remains ``uneven,'' according 
to the GAO.\66\
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    \65\ The Federal Trade Commission, for example, reported that the 
number of identity theft complaints it received in 2002 nearly doubled 
from the previous year and that identity theft is the Commission's 
``most widely reported consumer crime since the agency started issuing 
reports three years ago.'' Jennifer 8. Lee, Identity Theft Complaints 
Double in '02, N.Y. Times, Jan. 23, 2003, at 1.
    \66\ U.S. Government Accountability Office, Privacy Act: OMB 
Leadership Needed To Improve Agency Compliance, GAO-03-304, at 1 (June 
2003).
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    Since the September 11, 2001 terrorist attacks, Congress 
has sought to balance two competing goals: keeping the nation 
secure and protecting the privacy rights of our Nation's 
citizens. The desire to achieve and maintain this balance was 
reflected in the debate concerning the creation of the 
Department of Homeland Security (DHS). In 2002, the 
Subcommittee held a hearing on various privacy and 
administrative law issues presented by the anticipated creation 
of DHS.\67\ Among the matters considered were issues concerning 
how this new agency would ensure the privacy of personally 
identifiable information as it ``establishes necessary 
databases that coordinate with other agencies of the 
Government.'' \68\ Concerns were expressed on a bipartisan 
basis about the agency's ability to collect, manage, share, and 
secure personally identifiable information.\69\
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    \67\ Administrative Law, Adjudicatory Issues, and Privacy 
Ramifications of Creating a Department of Homeland Security: Hearing 
Before the Subcomm. on Commercial and Administrative Law of the House 
Comm. on the Judiciary, 107th Congress (2002).
    \68\ Id. at 2.
    \69\ See, e.g., id. at 4 (statements of Rep. Mark Green (R-WI) and 
Rep. Maxine Waters (D-CA)).
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    During the course of the hearing, it became apparent that 
DHS would benefit from the formal appointment of an individual 
responsible for privacy issues who would be accountable to 
Congress. In response to such persuasive testimony, the 
legislation establishing DHS was subsequently amended on a 
bipartisan basis to require the appointment of a privacy 
officer.\70\ This legislation, the Homeland Security Act of 
2002, was signed into law on November 25, 2002.\71\
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    \70\ H. Rep. No. 107-609, at 9-10 (2002).
    \71\ Pub. L. No. 107-296, Sec. 222, 116 Stat. 2135, 2155 (2002).
---------------------------------------------------------------------------
    Since its establishment, the DHS Privacy Officer has 
spearheaded various privacy initiatives. These include the 
creation of a Data Privacy and Integrity Advisory Committee, 
which ``advises the Secretary of the Department of Homeland 
Security and the DHS Chief Privacy Officer on programmatic, 
policy, operational, administrative, and technological issues 
within DHS that affect individual privacy, as well as data 
integrity and data interoperability and other privacy related 
issues.'' \72\ In 2006, for example, the Advisory Committee 
issued a report setting forth a ``recommended framework for 
analyzing programs, technologies, and applications in light of 
their effects on privacy and related interests.'' \73\
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    \72\ U.S. Department of Homeland Security Organization--Department 
Structure: Privacy Office--DHS Data Privacy and Integrity Advisory 
Committee, at http://www.dhs.gov/dhspublic/interapp/editorial/
editorial__0512.xml.
    \73\ Report of the Department of Homeland Security Data Privacy and 
Integrity Advisory Committee--Framework for Privacy Analysis of 
Programs, Technologies, and Applications, at 1 (Mar. 7, 2006).
---------------------------------------------------------------------------
    Based on the apparent success of the DHS Privacy Officer, 
the Subcommittee proposed the designation of a senior official 
in DOJ to execute similar responsibilities. This provision was 
included in legislation reauthorizing the Justice Department, 
enacted into law in 2006 as the Violence Against Women and 
Department of Justice Reauthorization Act of 2005.\74\
---------------------------------------------------------------------------
    \74\ Pub. L. No. 109-162, Sec. 1174, 119 Stat. 2960, 3124-25 
(2006).
---------------------------------------------------------------------------
    On May 17, 2006, the Subcommittee held an oversight hearing 
on ``Privacy in the Hands of the Government: The Privacy 
Officer for the Department of Homeland Security and the Privacy 
Officer for the Department of Justice.'' Witnesses at the 
hearing included: Maureen Cooney, Acting Chief Privacy Officer 
at DHS; Jane Horvath, DOJ Chief Privacy and Civil Liberties 
Officer; Professor Sally Katzen of George Mason University 
School of Law; and Linda Koontz, Director of Information 
Management Issues at GAO. The hearing provided the Subcommittee 
an opportunity to review the work and performance of the 
principal individuals charged with protecting our citizens' 
privacy at DHS and DOJ.

State taxation of Interstate Telecommunications Services

    Summary.--Over the past 30 years, there has been a drastic 
change in the communications industry, including the 
divestiture of the monopoly AT&T into seven regional operation 
companies, the deregulation of the industry beginning with the 
enactment of the Telecommunications Act of 1996, the 
extraordinary innovation in technology and the numerous mergers 
of companies throughout the technology industries. This move 
from a monopoly to a competitive market has been encouraged by 
the Federal and State governments. State tax policies, on the 
other hand, have not changed at the same rate as the industry's 
evolution.
    The states' tax policies regarding the telecommunication 
industry began to develop in the early 1900s when there was a 
monopoly for these services. The States and localities, in 
exchange for permitting a monopoly, levied industry-specific 
taxes to compensate the local governments for the company's use 
of public resources. The companies were allowed to recoup these 
taxes by including them into their commercial rates and passing 
them through to the customers.\75\
---------------------------------------------------------------------------
    \75\ Telecommunications Tax Policies: Implications for the Digital 
Age, National Governors' Association (Feb. 2000).
---------------------------------------------------------------------------
    In 1998, pursuant to the Internet Tax Freedom Act, Congress 
created the Advisory Commission on Electronic Commerce 
(``ACEC'') and directed it to conduct a comprehensive study of 
the current system of taxation as it related to the Internet 
and electronic commerce.\76\ Specifically, ACEC was instructed 
to examine ``ways to simplify Federal and State and local taxes 
imposed on the provision of telecommunications services.'' \77\ 
ACEC recognized four areas of Federal, State and local 
telecommunications taxation worthy of close examination: (1) 
the 3% federal excise tax; (2) State and local property taxes 
levied on telecommunications service providers; (3) State and 
local taxes on telecommunications service providers' business 
inputs; and (4) State and local transaction taxes on 
telecommunications.\78\
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    \76\ Omnibus Consolidated and Emergency Supplemental Appropriations 
Act, 1999, Pub. L. No. 105-277, Title XI, 112 Stat. 2681 (1999).
    \77\ Id. at Sec. 1102(g)(2)(F).
    \78\ Advisory Commission on Electronic Commerce, Report to Congress 
26 (April 2000) available at http://www.ecommercecommission.org/
acec__report.pdf.
---------------------------------------------------------------------------
    During the same period, the National Governors' Association 
and the National Council of State Legislators called for 
similar reviews and reforms of the State tax policies regarding 
telecommunications \79\. Since these events, there has been 
little change in the State and local telecommunications tax 
laws.\80\
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    \79\ Telecommunications Tax Policies: Implications for the Digital 
Age, National Governors' Association (Feb. 2000). This report suggested 
that States take eight specific steps to achieve tax reform:
    1. Examine state telecommunications services.
    2. Clarify definitions of telecommunications services.
    3. Shift from a gross receipts tax to a corporate net income tax.
    4. Expand the definition of services under sales and use taxes.
    5. Extend the sales and use tax exemption for manufacturing to 
equipment used to provide telecommunications services.
    6. Equalize assessment rations in real and personal property taxes.
    7. Examine local telecommunications taxes and fees.
    8. Promote administrative simplicity.
    The National Council of State Legislators (``NCSL'') drafted and 
agreed to a resolution on Telecommunications Tax Reform in 2000. This 
resolution included six items on which they encouraged States to work 
with localities and telecommunications providers to simplify and 
modernize the telecommunications tax system. See Resolution on 
Telecommunication Tax Reform, unanimously adopted by the full NCSL 
Executive Committee (July 2004), available at http://www.ncsl.org/
programs/fiscal/teltaxreform.htm.
    \80\ Over the last six years, only a few States have addressed 
reform. In 2006, the Virginia General Assembly passed a major reform of 
their communications laws. This included a reduction in the tax rate on 
telecommunications services from 29.77% to 5%, extending that tax to 
include all areas of communications, including Voice Over the Internet 
Protocol (VOIP) and satellite, and reduced the number of returns by 
having the state collect the taxes, instead of each locality. Kentucky 
and Missouri have also recently addressed rate reforms.
---------------------------------------------------------------------------
    The tax structure for the telecom industry is marked by 
different taxes levied by different government entities. This 
has resulted in taxes and fees that culminate in making the 
telecommunications industry one of the highest taxed major 
industries, just below alcohol, gas and tobacco.\81\ Unlike the 
taxes on alcohol and tobacco, which are partially to discourage 
the use of those products and considered ``sin'' taxes, States 
generally do not want to discourage the use of, or growth of, 
the communications industry. As the industry becomes more 
competitive, it is no longer a safe assumption that any taxes 
levied on the telecommunications industry will be able to be 
passed through to the consumer or that it will not effect the 
consumer's actions.\82\
---------------------------------------------------------------------------
    \81\ Telecommunications Tax Policies: Implications for the Digital 
Age, National Governors' Association, at 7 (Feb. 2000).
    \82\ Id. at 8.
---------------------------------------------------------------------------
    In 2004, the average State and local effective tax rate 
nationwide on telecommunications services was 14.17%.\83\ This 
is more than double the effective tax rate for general 
businesses nationally. The State and localities each levy a 
number of different taxes and fees that culminate in the 
effective rate. These taxes burden the consumers and can 
constitute over 20% of their telecommunications bill.\84\ These 
taxes also tend to be regressive, thus affecting lower income 
customers to a greater degree than medium and higher income 
customers.\85\
---------------------------------------------------------------------------
    \83\ Council on State Taxation, 2004 State Study and Report on 
Telecommunications Taxes [2004 COST Study]. This amount varies from 
state to state, from 27.31% in Maryland to 3.97% in Nevada. See id. at 
Table of Effective State, Local & Federal Telecommunications Taxes by 
State, 2004.
    \84\ Sean Parnell, ``State Taxes Hit Telecom Services Doubly 
Hard'', Budget & Tax News, August 1, 2005.
    \85\ Joseph J. Cordes, Repealing the Telecom Excise Tax: An 
Economic Primer, at 5 (April 2000). The Tax Foundation, Federal Excise 
Tax Collections by Income Class (2001), http://www.taxfoundation.org./
tasdata/show/525.html.
---------------------------------------------------------------------------
    The Subcommittee held a hearing on June 13, 2006 to look at 
the burdens placed on consumers by the State and local taxes 
placed on communication service, the types and number of 
different taxes levied on communication services, the effect 
these taxes have on the marketplace, and how the States and 
localities are currently addressing this issue of over 
taxation.
    At the hearing Members heard from Steven Rauschenberger, 
Illinois State Senator and President of the National Conference 
of State Legislators; Scott Mackey, a Economist with Kimbell 
Sherman Ellis; David Quam, the Legislative Director for the 
National Governors Association; and Stephen Kranz, Counsel for 
the Council on State Taxation.

The 60th Anniversary of the Administrative Procedure Act: Where do we 
        go from here?

    Summary.--As this year marked the 60th anniversary of the 
Administrative Procedure Act (APA),\86\ the Subcommittee 
determined that this event provided a timely opportunity to 
consider whether the Act sufficiently addresses current issues 
and challenges presented by administrative law, process and 
procedure. Enacted in 1946, the APA establishes minimum 
procedures to be followed by Federal administrative agencies 
when they conduct business that affects the public and requires 
judicial review of certain administrative acts. Many agency 
actions, however, are not subject to the APA. As one academic 
noted, ``[T]he American administrative system, by evolution and 
design, is characterized by a considerable degree of 
informality, agency discretion and procedural flexibility.'' 
\87\
---------------------------------------------------------------------------
    \86\ 5 U.S.C. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372, 
7521 (2000).
    \87\ Gary J. Edles, Lessons from the Administrative Conference of 
the United States, 2 European Pub. L. 571, 572 (1996).
---------------------------------------------------------------------------
    Witnesses who testified at the July 25, 2006, hearing 
included: Professor Bill West who discussed the results of his 
study of how agencies develop proposed rules. A former chair of 
ACUS, Professor Marshall Breger of The Catholic University of 
America--Columbus School of Law, described the benefits of 
ACUS. Professor M. Elizabeth Magill from the University of 
Virginia School of Law, explained why there is a need for 
empirical research in the area of administrative law, process 
and procedure. Professor Cary Coglianese provided an update on 
certain developments in the area of e-rulemaking.

Administrative Law, Process and Procedure Project for the 21st Century

    On November 14, 2006, the Subcommittee conducted an 
oversight hearing on the Administrative Law, Process and 
Procedure Project for the 21st Century. A description of the 
Project appears earlier in this section. Witnesses from the 
American Law Division of the Congressional Research Service who 
testified about the Project at the hearing were the following: 
Morton Rosenberg, Specialist in American Public Law; Curtis 
Copeland, Specialist in American National Government; and T.J. 
Halstead, Legislative Attorney.
    This hearing was the seventh that the Subcommittee 
conducted as part of the Project. These hearings included 
oversight hearings held in the 108th Congress on the 
reauthorization of the ACUS at which Justices Antonin Scalia 
and Stephen Breyer testified.\88\ As elsewhere noted in this 
Activities Report, the Subcommittee held a hearing that focused 
on the Congressional Review Act in light of that Act's tenth 
anniversary.\89\ In addition, the Subcommittee held a hearing 
on how the Regulatory Flexibility Act (RFA) \90\ has been 
implemented since its enactment in 1980 and whether proposed 
legislation could adequately address perceived weaknesses in 
the RFA.\91\
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    \88\ Reauthorization of the Administrative Conference of the United 
States: Hearings Before the Subcomm. on Comm. and Admin. Law of the H. 
Comm. on the Judiciary, 108th Cong. (2004).
    \89\ Tenth Anniversary of the Congressional Review Act: Hearing 
Before the Subcomm. on Commercial and Administrative Law of the H. 
Comm. on the Judiciary, 109th Cong. (2006).
    \90\ Pub. L. No. 96-354, Stat. 1164 (1980) (codified at 5 U.S.C. 
Sec. Sec. 601-612).
    \91\ The Regulatory Flexibility Improvements Act: Hearing on H.R. 
682 Before the Subcomm. on Commercial and Administrative Law of the H. 
Comm. on the Judiciary, 109th Cong. (2006). The GAO has on numerous 
occasions cited various deficiencies with the RFA. See. e.g., SBBEFA 
Compliance--Is It the Same Old Story?: Hearing Before the H. Comm. on 
Small Business, 107th Cong. 51 (2002) (statement of Victor Rezendes, 
Managing Director--Strategic Issues Team, U.S. Government 
Accountability Office); Regulatory Flexibility Act--Status of 
Director--Strategic Issues Team, U.S. Government Accountability 
Office); Regulatory Flexibility Act--Status of Agencies' Compliance: 
Hearing Before the S. Comm. on Small Business, 104th Cong. 51 (1995) 
(statement of Johnny C. Finch, Assistant Comptroller General--General 
Government Division, U.S. Government Accountability Office); U.S. 
Government Accountability Office, Regulatory Flexibility Act: Status of 
Agencies' Compliance, GAO/GGD-94-105 (Apr. 27, 1994); U.S. Government 
Accountability Office, Regulatory Flexibility Act: Inherent Weaknesses 
May Limit Its Usefulness for Small Governments, GAO/HRD-91-16 (Jan. 11, 
1991).
---------------------------------------------------------------------------
    In addition to conducting hearings, the Subcommittee 
cosponsored three symposia as part of the Project. The first 
symposium, held in December 2005, was on Federal E-Government 
Initiatives. This program, chaired by Professor Coglianese of 
the University of Pennsylvania Law School, examined the 
Executive Branch's efforts to implement e-rulemaking across the 
Federal government. A particular focus of this program was on 
the ongoing development of a government-wide Federal Docket 
Management System (FDMS). Presentations at the symposium were 
given by government managers involved in the development of the 
FDMS, as well as by academic researchers studying e-rulemaking. 
Representatives from various agencies, including OMB, the U.S. 
Environmental Protection Agency, and the GAO, discussed the 
current progress of e-rulemaking. In addition, academics 
reported on current and prospective research endeavors dealing 
with certain aspects of e-rulemaking. The program offered a 
structured dialogue that addressed the challenges and 
opportunities for implementing e-rulemaking, the outcomes 
achieved by e-rulemaking to date, and strategies that could be 
used in the future to improve the rulemaking process through 
application of information technology.
    The second symposium, held at American University, examined 
the role of science in the rulemaking process.\92\ The 
symposium consisted of four panels: OMB's recent initiatives on 
regulatory science, science and the judicial review of 
rulemaking, science advisory panels and rulemaking, and 
government agencies' science capabilities.
---------------------------------------------------------------------------
    \92\ http://www.american.edu/rulemaking/news/index.htm (symposium 
transcript).
---------------------------------------------------------------------------
    The third symposium, held on September 11, 2006, considered 
Congressional, Presidential and Judiciary review of agency 
rulemaking. This program, hosted by CRS, also examined 
conflicting claims of legal authority over rulemaking by the 
Congressional and Executive branches.
    As part of the Project, several studies were also 
conducted. One study, conducted by Professor Bill West from 
Texas A&M University, examines the role of public participation 
before notice and comment. The second study focused on court 
challenges to agency rulemakings. Professor Jody Freeman of 
Harvard Law School conducted an independent analysis of a 
database consisting of every case involving administrative 
agencies that were appealed to the U.S. Court of Appeals for 
all 12 circuits over a ten-year period. The third study, which 
is being conducted by Professor Stuart Brettschneider of the 
Maxwell School of Public Administration of Syracuse University, 
will determine how many science advisory committees currently 
exist, how their members are selected, how issues of neutrality 
and conflicts of interest are resolved, and how issues are 
selected for review, among other matters.
    On December 7, 2006, the Subcommittee reported favorably 
the Interim Report on the Administrative Law, Process, and 
Procedure Project for the 21st Century without amendment.

The arbitration process of the National Football League Players 
        Association

    The Subcommittee has jurisdiction over title 9 of the 
United States Code, which deals with arbitration. That title 
was adopted nearly 60 years ago in an effort to alleviate 
pressure on the federal courts by encouraging parties to 
arbitrate and settle differences before they reach the stage of 
active litigation. In order to facilitate settlements by 
arbitration, the title provides a strong presumption that 
courts will enforce determinations arrived at under this 
process. Though avenues for judicial review of arbitration 
determinations exist and have been utilized by parties, the 
title itself has been rarely amended.
    Arbitration has been considered by the Subcommittee during 
previous Congresses, most notably during the 106th Congress 
when it considered the ``Fairness and Voluntary Arbitration 
Act,'' legislation dealing with the arbitration procedure 
employed by agreement to resolve disputes between automobile 
manufacturers and their sales franchisees. In that situation, a 
principal item of contention was that franchisees were forced 
into contracts of adhesion that required them to agree to 
arbitrators who, because of their relationship to the 
manufacturers, were not perceived to be neutral. Ultimately, 
legislation providing a more even playing field between the 
manufacturers and the franchisees in resolving disputes through 
arbitration was passed by the Congress and signed into law.\93\
---------------------------------------------------------------------------
    \93\ Pub. L. No. 107-273 (2001), 116 Stat. 1758, 1835 (2001) 
(codified at 15 U.S.C. Sec. 1226 (2000)).
---------------------------------------------------------------------------
    The Subcommittee has on other occasions exercised its 
jurisdiction in this area. On June 25, 1999, for instance, it 
held an oversight hearing entitled, ``Franchising: the 
Franchise Relationship, Mutual Rights and Obligations of 
Franchisees and Franchisors, and Assessing the Need for More 
Regulation.'' The Subcommittee also considered legislation 
restricting certain activities of sports agents when it held a 
hearing on and reported H.R. 361, ``The Sports Agent 
Responsibility and Trust Act'' during the 108th Congress, which 
was enacted into law in 2004.\94\
---------------------------------------------------------------------------
    \94\ Pub. L. No. 108-304, 118 Stat. 1124 (2004).
---------------------------------------------------------------------------
    On December 7, 2006, the Subcommittee held an oversight 
hearing on the arbitration process utilized by the National 
Football League Players Association (NFLPA or Association). 
Pursuant to the collective bargaining agreement between the 
National Football League (NFL or League) and the Association, 
the NFLPA is recognized as the exclusive bargaining agent for 
the athletes and gives it the authority and responsibility to 
control and discipline sports agents who represent the athletes 
in contract negotiations with respective franchises within the 
League. Under this agreement, the NFL Management Council and 
its football franchises agree to negotiate player contracts 
only with an agent certified by the NFLPA. Under the collective 
bargaining agreement, however, the NFLPA may not decertify an 
agent without permitting that agent to exhaust his opportunity 
to appeal the decertification to a neutral arbitrator pursuant 
to its agent regulation system.''
    The purpose of the hearing was to examine certain issues 
presented with respect to the NFLPA arbitration process as 
applied to sports agents. Witnesses at the hearing included: 
LaVar Arrington, a linebacker with the New York Giants; Richard 
Berthelson, General Counsel, NFLPA; Professor Richard Karcher, 
Director of the Florida Coastal School of Law Center for Law 
and Sports; and Larry Friedman, Esquire, Managing Director, 
Friedman and Feiger, LLP. The hearing considered such issues as 
the following: (1) the fairness of the arbitration process 
employed by the NFLPA; (2) whether this process ensures the 
arbitrator's neutrality; (3) whether adequate opportunity for 
judicial review exists; (4) whether the process comports with 
the intent underlying the Federal Arbitration Act and, if not, 
what might be a proper legislative response.

                OTHER SUBCOMMITTEE OVERSIGHT ACTIVITIES

False Claims Act and the Department of Justice's qui tam caseload

    Summary.--In April 2005, Judiciary Chairman Sensenbrenner 
and Senator Charles F. Grassley (R-IA) requested that the 
Government Accountability Office (GAO) conduct a study on the 
False Claims Act and the Department of Justice's (DOJ) qui tam 
caseload.
    The False Claims Act (FCA) is one of the government's 
primary weapons to fight fraud against the government. The Act 
requires penalties and damages to be paid by any individual or 
business that deliberately submits or causes the submission of 
fraudulent claims to the United States. All parties engaged in 
the legal suit are entitled to any money the government may 
recover. According to GAO, since Congress amended the FCA in 
1986, the government has won recoveries of over $15 billion 
from fiscal years 1987 through 2005.
    With regard to the request to provide information on FCA 
litigation, the report addressed existing Department of Justice 
policies and statutory guidance regarding the relationship 
between the government and relators in prosecuting qui tam 
cases.
    To determine what statutory guidance and DOJ policies 
exist, GAO reviewed applicable laws, regulations, and DOJ 
policies regarding the relationship between the government and 
relators in prosecuting qui tam cases. GAO interviewed DOJ and 
other Federal officials and private practice attorneys involved 
in qui tam litigation. To provide information on DOJ's qui tam 
caseload, it obtained DOJ's qui tam database on closed unsealed 
qui tam cases for fiscal years 1987 through 2005 and conducted 
computerized analyses of certain data fields. To assess the 
reliability of the data, it discussed the data collection 
methods for ensuring data quality with responsible officials 
and reviewed the data for reasonableness.
            GAO report highlights
    Statistics on the number and types of cases filed are as 
follows:
          1.  From the fiscal years 1987 through 2005, the 
        number of qui tam FCA cases increased as a proportion 
        of total FCA cases.
          2.  The median FCA recovery in a qui tam case was 
        $784,597, of which the median relator share was 
        $123,885.
          3.  Health care and procurement fraud cases 
        constituted approximately 79 percent of all qui tam 
        cases pursued by the DOJ.
          4.  2,490 closed and unsealed qui tam cases that GAO 
        analyzed were filed in 92 U.S. district courts.
          5.  Recoveries and relator share amounts were greater 
        in cases where DOJ intervened than in cases where DOJ 
        declined to intervene.
        SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

  HOWARD COBLE, North Carolina, 
             Chairman

ROBERT C. SCOTT, Virginia            DANIEL E. LUNGREN, California
SHEILA JACKSON LEE, Texas            MARK GREEN, Wisconsin
MAXINE WATERS, California            TOM FEENEY, Florida
MARTIN T. MEEHAN, Massachusetts      STEVE CHABOT, Ohio
WILLIAM D. DELAHUNT, Massachusetts   BOB GOODLATTE, Virginia
ANTHONY D. WEINER, New York          RIC KELLER, Florida
                                     JEFF FLAKE, Arizona
                                     MIKE PENCE, Indiana
                                     J. RANDY FORBES, Virginia
                                     LOUIE GOHMERT, Texas

          Tabulation of subcommittee legislation and activity

Legislation referred to the Subcommittee.........................   249
Legislation on which hearings were held..........................    38
Legislation reported favorably to the full Committee.............    13
Legislation reported adversely to the full Committee.............     0
Legislation reported without recommendation to the full Committee     6
Legislation reported as original measure to the full Committee...     0
Legislation discharged from the Subcommittee.....................     3
Legislation pending before the full Committee....................     4
Legislation reported to the House................................    15
Legislation discharged from the Committee........................     0
Legislation pending in the House.................................     2
Legislation passed by the House..................................    12
Legislation pending in the Senate................................     7
Legislation vetoed by the President (not overridden).............     0
Legislation enacted into Public Law..............................     7
Legislation enacted into Public Law as part of other legislation.     5
Days of legislative hearings.....................................    21
Days of oversight hearings.......................................    24

                    Jurisdiction of the Subcommittee

    The Subcommittee on Crime, Terrorism, and Homeland Security 
has jurisdiction over the Federal Criminal Code, drug 
enforcement, sentencing, parole and pardons, internal and 
homeland security, Federal Rules of Criminal Procedure, 
prisons, criminal law enforcement, and other appropriate 
matters as referred by the Chairman, and relevant oversight.

                         Legislative Activities


H.R. 32, the ``Stop Counterfeiting in Manufactured Goods Act''

    Summary.--The proliferation of counterfeit products in 
recent years creates not only a threat to legitimate 
businesses, but also to the consumer. Many of the products that 
are falsely labeled are labeled with brand names or trademarks 
that consumers know and trust. The mislabeling of often 
inferior products creates a false sense of security for 
consumers. Additionally, some of the counterfeited products, 
such as prescription or over-the-counter medications, could 
have serious health consequences if they are used by an 
unsuspecting consumer.
    FBI and customs and border agents estimate sales of 
counterfeit goods are lining the pockets of criminal 
organizations to the tune of about $500 billion in sales per 
year. By the middle of fiscal year 2003, the Department of 
Homeland Security already had reported 3,117 seizures of 
counterfeit branded goods including cigarettes, books, apparel, 
handbags, toys and electronic games with an estimated street 
value of about $38 million--up 42 percent from last year.
    For the fiscal 2003 midyear report the top five offending 
countries of origin are the People's Republic of China ($26.7 
million), Hong Kong ($1.9 million), Mexico ($1.6 million), 
South Korea ($1.4 million) and Malaysia ($1 million). The 
International AntiCounterfeiting Coalition, (IACC) estimates 
that counterfeiting results in more than $200 billion a year in 
lost jobs, taxes and sales. Fortune 500 companies spend an 
average of between $2 million and $4 million a year each to 
fight counterfeiters.
    In addition to counterfeiting general retail products, 
which cause huge economic losses to manufacturers, many 
counterfeiters are engaged in the sales of products which may 
present real threats to the health and safety of consumers such 
as counterfeit prescription medications or automobile parts.
    The Food and Drug Administration (FDA) indicates that 
although the prevalence of counterfeit pharmaceuticals is hard 
to determine, estimates suggest that upwards of 10% of drugs 
worldwide are counterfeit, and in some countries more than 50% 
of the drug supply is made up of counterfeit drugs. Counterfeit 
drugs may include products without the active ingredient, with 
an insufficient quantity of the active ingredient, with the 
wrong active ingredient, or with fake packaging.
    The FDA website indicates that counterfeit drugs can have 
serious consequences for consumers. According to the FDA, 
patients who receive counterfeit medications may experience 
unexpected side effects, allergic reactions, or a worsening of 
their medical condition. Additionally, the FDA has found that a 
number of counterfeits do not contain any active ingredients, 
and instead contain inert substances, which do not provide the 
patient any treatment benefit.
    The Automobile Manufacturers Association indicates that 
counterfeit auto parts is a $12 billion problem globally--$3 
billion in the U.S. alone. In terms of lost jobs, the 
Department of Commerce estimates that the U.S. auto industry 
could hire over 200,000 more workers if the counterfeit auto 
parts trade disappeared. In addition to the economic losses and 
loss of jobs for American workers, consumers safety is also at 
risk by counterfeit automobile parts. The U.S. automobile 
industry has reported a number of incidences of brake failure 
caused by brake pads manufactured from wood chips.
    According to the FBI's Financial Institution Fraud Unit, 
counterfeit products cheat the U.S. of tax revenues, adds to 
the national trade deficit, subjects consumers to health and 
safety risks, and leaves consumers without any legal recourse 
when they are financially or physically injured by counterfeit 
products. The FBI has identified counterfeit products not only 
in pharmaceuticals and automobile parts, but also in such 
products as airplane parts, baby formulas and children's toys.
    On March 17, 2005, the Subcommittee on Crime, Terrorism and 
Homeland Security held a hearing on combating trafficking in 
counterfeit products where the Subcommittee received testimony 
indicating that commerce in and distribution of, packaging, 
labels, tags, containers, and documentation, bearing the 
registered trademarks of manufacturers of genuine goods or the 
registered certification marks of product testing organizations 
often occurs separately from the goods themselves, involving 
different persons, and that the packaging, labels, or tags 
bearing the registered mark is often matched with the goods 
downstream and applied to products or services that are not 
manufactured by the owner of the mark. The products and 
services to which these labels, tags, documents, containers, 
packaging and the like bearing registered marks are applied to 
unbranded products that do not meet the product qualities or 
the safety or performance requirements of the manufacturer of 
genuine product or the product testing and certification 
organization, and that these products can be unsafe to users 
and consumers who are deceived.
    H.R. 32 tightens the law which makes it a crime to traffic 
in such products (18 U.S.C. Sec. 2320). H.R. 32, the ``Stop 
Counterfeiting in Manufactured Goods Act'' would expand Title 
18 provisions, which make it a crime to traffic in counterfeit 
products. Under this legislation, section 2320 of Title 18 
would be expanded to include penalties for those who traffic in 
counterfeit labels, symbols, or packaging of any type knowing a 
counterfeit mark has been applied.
    Additionally, this legislation would require the forfeiture 
of any property derived, directly or indirectly, from the 
proceeds of the violation as well as any property used, or 
intended to be used in relation to the offense. This 
legislation also specifies that restitution must be paid to the 
owner of the mark that was counterfeited.
    An amendment in the nature of a substitute to H.R. 32, was 
adopted by the full committee to include specific language 
clarifying that repackaging activities conducted without intent 
to deceive or confuse are not subject to the criminal 
prosecution established under this legislation.
    Legislative History.--H.R. 32 was introduced on January 4, 
2005, and referred to the Committee on Judiciary. The 
Subcommittee on Crime, Terrorism, and Homeland Security held a 
hearing and markup of the legislation on March 17, 2005. The 
Committee on Judiciary ordered the bill, H.R. 32, favorably 
reported, with amendment, on April 13, 2005. The legislation 
was considered by the House of Representatives under suspension 
of the rules and passed on a voice vote on May 23, 2005. On 
February 15, 2006, the legislation passed the Senate by 
unanimous consent with an amendment. On March 7, 2006, the 
House of Representatives voted to suspend the rules and pass 
H.R. 32, as amended by the Senate, on a voice vote. The 
President signed this bill into law on March 16, 2006. (Pub. L. 
109-181)

H.R. 95, the ``Dru Sjodin National Sex Offender Public Database Act of 
        2005''

    Summary.--Congressman Paul E. Gillmor introduced H.R. 95 on 
January 4, 2005. The bill directs the Attorney General to: (1) 
make publicly available in a registry via the Internet, from 
information contained in the National Sex Offender Registry, 
specified information about sexually violent predators and 
persons convicted of a sexually violent offense or a criminal 
offense against a minor, who are required to register with a 
minimally sufficient State sexual offender registration 
program; and (2) allow registry users to identity offenders who 
are currently residing within a radius of the location 
indicated by the user. Requires registry information to include 
the offender's name, address, date of birth, physical 
description, and photograph, the nature and date of commission 
of the offense, and the date on which the person is released 
from prison or placed on parole, supervised release, or 
probation
    The bill requires that (1) any State that provides for a 
civil commitment proceeding to notify the State attorney 
general of the impending release of a sexually violent predator 
or a person has been deemed to be at high-risk for recommitting 
any sexually violent offense or criminal offense against a 
minor; (2) the State attorney general to consider instituting a 
civil commitment proceeding; and (3) each State to intensively 
monitor, for at least a year, any such person who has been 
unconditionally released by the State and who has not been 
civilly committed. Failure by states to implement requirements 
of the Act makes them ineligible to receive 25 percent of funds 
that would otherwise be allocated to it under the Violent Crime 
Control and Law Enforcement Act of 1994.
    Legislative History.--On January 4, 2005, H.R. 95 was 
referred to the Committee on the Judiciary. On March 2, 2005, 
it was referred to the Subcommittee on Crime, Terrorism, and 
Homeland Security. The Subcommittee on Crime, Terrorism and 
Homeland Security held a hearing on H.R. 95 on June 9, 2005. 
Similar provisions were included in H.R. 4472. No further 
action has been taken.

H.R. 244, the ``Save Our Children: Stop the Violent Predators Against 
        Children DNA Act of 2005''

    Summary.--Congresswoman Sheila Jackson-Lee introduced H.R. 
244 on January 6, 2005. H.R. 244 directs the Attorney General 
to establish and maintain a database solely for collecting DNA 
(deoxyribonucleic acid) information with respect to violent 
predators against children. The bill (1) authorizes Federal, 
State, and local agencies and other entities to submit DNA 
information for the database and to compare DNA information 
within the database, (2) directs the Attorney General to make 
grants to States to improve programs to decrease recidivism of 
such predators, (3) requires the maximum sentence to be imposed 
for a crime of violence, including a sex crime, against an 
individual under age 18 that would, in and of itself, establish 
the offender as such a predator, without regard to any 
mitigating circumstance that would otherwise apply.
    Legislative History.--On January 6, 2005, H.R. 244 was 
referred to the Committee on the Judiciary. On March 2, 2005, 
it was referred to the Subcommittee on Crime, Terrorism, and 
Homeland Security. The Subcommittee on Crime, Terrorism and 
Homeland Security held a hearing on H.R. 244 on June 9, 2005. 
Similar provisions were included in H.R. 4472. No further 
action has been taken.

H.R. 764, to Require the Attorney General to Establish a Federal 
        Register of Cases of Child Abuse or Neglect

    Summary.--Congresswoman Sue W. Kelly introduced H.R. 764 on 
February 10, 2005. H.R. 764 directs the Attorney General to 
create a national register of cases of child abuse or neglect 
(abuse), with the information in the register supplied by 
States or political subdivisions. Requires the register to 
collect information on children reported as abused in a central 
electronic database.
    Legislative History.--On February 10, 2005, H.R. 764 was 
referred to the Committee on the Judiciary. On March 4, 2005, 
it was referred to the Subcommittee on Crime, Terrorism, and 
Homeland Security. The Subcommittee on Crime, Terrorism and 
Homeland Security held a hearing on H.R. 764 on June 9, 2005. 
Similar provisions were included in H.R. 4472. No further 
action has been taken.

H.R. 817, the ``Animal Fighting Prohibition Enforcement Act of 2005''

    Summary.--Dog fighting is prohibited in all 50 states and 
cockfighting is outlawed in most states under specific laws 
prohibiting it or general prohibitions against animal fighting. 
In a few states, the practice is not specifically outlawed; 
however, general animal cruelty statutes may be interpreted to 
outlaw such activities.\1\ Virginia prohibits profiting or 
gambling on a ``cockfight'', but does not specifically prohibit 
the activity. In two states, ``cockfighting'' is legal.\2\ 
Dogfighting is legal in American Samoa and Guam. 
``Cockfighting'' is legal in American Samoa, Guam, Puerto Rico 
and the Virgin Islands.
---------------------------------------------------------------------------
    \1\ Arkansas, Georgia, Hawaii, Kentucky and Virginia have general 
cruelty to animal statutes that do not specify ``cockfighting'' as 
prohibited.
    \2\ New Mexico and Louisiana specifically exempt ``cockfighting'' 
as prohibited activity.
---------------------------------------------------------------------------
    In 1976, Congress passed a law to ban the sponsor or 
exhibit of animals that were moved in interstate or foreign 
commerce in an animal fighting venture. The law also made it 
illegal to buy, sell, deliver, or transport an animal in 
interstate or foreign commerce for participation in an animal 
fighting venture. Additionally, Congress banned the use of the 
U.S. mail or any other instrument of interstate or foreign 
commerce to promote an animal fight. With respect to fighting 
ventures involving live birds, the law specifically included 
only those states that banned fighting ventures. Violations of 
this law were made punishable by up to a $5,000 fine and 1 year 
imprisonment, or both.
    On May 13, 2002, Congress enacted amendments to the Animal 
Welfare Act, which took effect on May 14, 2003. The changes 
made it a crime, regardless of state law, for exhibiting, 
sponsoring, selling, buying, transporting, delivering, or 
receiving a bird or other animal in interstate or foreign 
commerce for the purposes of participation in an animal 
fighting venture such as cockfighting or dogfighting, according 
to Section 26 of the Act. For states where fighting among live 
birds is allowed under the law, the Act only prohibited the 
sponsor or exhibit of a bird for fighting purposes if the 
person knew that the bird was knowingly bought, sold, 
delivered, transported, or received in interstate or foreign 
commerce. The change in the Animal Welfare Act closed a 
loophole that allowed shipment of birds from a state where 
cockfighting is illegal to a state where it is legal. The 
change in the Act also increased the possible fines for 
violations from $5,000 to $15,000.
    H.R. 817 is intended to strengthen the prohibitions against 
animal fighting ventures within the United States. H.R. 817 
would establish stricter penalties for animal fighting than 
those that currently exist under Title 7 of the U.S. Code. In 
effect, H.R. 817 would establish criminal penalties for the 
buying, selling, or the transporting of animals for 
participation in animal fighting ventures. These new 
prohibitions would be placed in Chapter 3 of Title 18, U.S. 
Code.
    Although the possible fines were increased in 2003, the 
possible term of imprisonment of the Animal Welfare Act dealing 
with animal fighting has not been updated since the original 
enactment of 1976. H.R. 817, the Animal Fighting Prohibition 
Enforcement Act of 2005, intends to address the modern problems 
associated with animal fighting ventures. The Act establishes 
criminal penalties under Title 18; authorizing jail time of up 
to two (2) years for violations of federal animal fighting law, 
rather than the misdemeanor penalty (up to one year) which 
currently exists under Title 7.
    Legislative History.--H.R. 817 was introduced by 
Representative Mark Green on February 15, 2005. The legislation 
was referred to the Committee on Judiciary and the Committee on 
Agriculture. Hearings on H.R. 817 were held at the Subcommittee 
on Crime, Terrorism, and Homeland Security on May 18, 2005.

H.R. 1279, the ``Gang Deterrence and Community Protection Act of 2005''

    Summary.--Gang violence in America is a growing problem. 
While national figures have shown a decline in violent crime 
generally, the proportion of violent crimes committed by gang 
members has increased. In 2003, juvenile gang members committed 
over 800 murders across the nation. Gangs have been directly 
linked to illegal drug trafficking, human trafficking, 
identification documentation falsification, violent maimings, 
assault and murder, and the increased use of firearms to commit 
deadly crimes.
    While the data in the preliminary report has not been 
grouped by age at this time, a number of localities have 
pointed to a increase in juvenile delinquency. A growing 
concern among many in the criminal justice field is that as 
many convicts finish the long prison terms handed down in the 
1990's, are released into society, and begin to integrate with 
the younger criminal element, crime will continue to spike.
    In response to gang violence, Congressman J. Randy Forbes 
introduced H.R. 1279 on March 14, 2005. This bill seeks to 
build on strategies that work, including: (1) mandatory-minimum 
penalties for crimes of violence to incapacitate violent gang 
members and to gain leverage from less culpable gang members in 
order to secure cooperation of insiders to solve gang crimes 
and prosecute higher-ups in the organization; (2) joint task 
forces of Federal, State and local law enforcement and 
prosecutors that will join Federal resources with local 
intelligence in order to target the most serious gangs in a 
community; (3) the promotion of intelligence sharing among 
Federal, State and local law enforcement agencies; and (4) 
limited juvenile justice reform to ensure that violent juvenile 
gang members are prosecuted for acts of violence.
    Legislative History.--On March 14, 2005, H.R. 1279 was 
referred to the Committee on the Judiciary. On April 4, 2005, 
it was referred to the Subcommittee on Crime, Terrorism, and 
Homeland Security. A legislative hearing on H.R. 1279 was held 
on April 5, 2005. Testimony was received from four witnesses, 
representing the United States Department of Justice, the 
National District Attorney's Association, Michelle Guess, a 
victim of gang violence, and Professor Robert Shepard, 
University of Richmond Law School, Richmond, Virginia, with 
additional material submitted by various organizations. On 
April 12, 2005, the Subcommittee on Crime, Terrorism, and 
Homeland Security met in open session and ordered favorably 
reported the bill H.R. 1279, by a vote of 5 to 3, with one 
member voting present, a quorum being present. On April 20, 
2005, the Committee met in open session and ordered favorably 
reported the bill H.R. 1279 with an amendment by a recorded 
vote of 16 to 11, a quorum being present. The bill was placed 
on the Union Calendar No. 35 on May 5, and on May 11 passed the 
House by the Yeas and Nays 279-144. The following day, H.R. 
1279 was received in the Senate, read twice, and referred to 
the Committee on the Judiciary. No further action was taken on 
this bill.

H.R. 1355, the ``Child Predator Act of 2005''

    Summary.--Congressman Ted Poe introduced H.R. 1355 on March 
16, 2006. This bill amends the Jacob Wetterling Crimes Against 
Children and Sexually Violent Offender Registration Act to: (1) 
expand the definition of ``criminal offense against a victim 
who is a minor'' to include every offense, whether Federal, 
State, local, tribal, foreign, or otherwise, that involves one 
or more of specified characteristics (such as kidnapping or 
sexual conduct), when committed against a minor; and (2) define 
``child predator'' as a person who is convicted of such an 
offense that is sexual in nature, where the minor is age 13 or 
younger. The bill also requires states to establish a registry 
for sex offenders and for the Federal Bureau of Investigation 
to disclose to the public, on a free-access Internet site, all 
information collected regarding each child predator, including 
a recent photograph.
    Legislative History.--On March 16, 2005, H.R. 1355 was 
referred to the Committee on the Judiciary. On April 4, 2005, 
it was referred to the Subcommittee on Crime, Terrorism, and 
Homeland Security. The Subcommittee held a hearing on H.R. 1355 
on June 9, 2005. Most of H.R. 1355 was incorporated into the 
text of H.R. 4472, the ``Adam Walsh Child Protection and Safety 
Act,'' which was signed into law on July 27, 2006 (Pub. L. 109-
248).

H.R. 1384, the ``Firearm Commerce Modernization Act''

    Summary.--Congressman Phil Gingrey (R-GA) introduced H.R. 
1384 on March 17, 2005. H.R. 1384 provides for the interstate 
sale of hand guns, subject to the same requirements for 
legality that currently exist for the interstate sale of long-
guns, that is: the sale must be in person; the sale must be 
legal in the state of the selling Federal firearm licensee 
(``FFL''), and in the state of the gun purchaser; and the sale 
must comply with all Federal laws, including the purchaser 
passing a background check.
    Currently handguns are treated differently than long-guns; 
handguns must be shipped by the FFL in the state of purchase to 
another FFL in the purchaser's state of residence, and then 
transferred by that FFL to the purchaser. The shipment of 
firearms by common carrier comes with the attendant risk of 
loss or theft. This outdated provision regarding handguns now 
blocks or delays many legal sales to law-abiding citizens.
    The bill eliminates the need to involve an FFL in the 
purchaser's state of residence. FFLs are provided with a 
publication from the BATFE, containing all Federal and state 
gun laws, and the current background check systems are more 
effective in blocking unlawful sales than the checks envisioned 
in 1968. If an FFL is not certain that a sale will be legal in 
both states and under Federal law, then the FFL does not have 
to complete the transaction.
    Legislative History.--On Wednesday, May 3, 2006, the 
Subcommittee on Crime, Terrorism, and Homeland Security held a 
legislative hearing on H.R. 1384. This hearing focused on the 
need to update and modify existing law regarding the interstate 
sale of firearms. Testifying before the Subcommittee were (1) 
the Honorable Phil Gingrey, Member of Congress, Georgia, 11th 
District; (2) the Honorable Steve King, Member of Congress, 
Iowa, 5th District; and (3) the Honorable Carolyn McCarthy, 
Member of Congress, New York, 4th District. The Subcommittee, 
via voice vote, reported the bill favorably to the full 
committee on May 18, 2006. On Wednesday, September 6, 2006, the 
Committee on the Judiciary conducted a markup on H.R. 1384, and 
reported the bill favorably.

H.R. 1400, the ``Securing Aircraft Cockpits Against Lasers Act of 
        2005''

    Summary.--On March 17, 2005, Rep. Ric Keller (R-FL) 
introduced H.R. 1400, the ``Securing Aircraft Cockpits Against 
Lasers Act of 2005,'' to address the growing problem of 
individuals intentionally aiming lasers at the cockpits of 
aircraft, particularly at the critical stages of take-off and 
landing. This practice constitutes a threat to aviation 
security and passenger safety. H.R. 1400 adds a section 
following 18 U.S.C. Sec. 38 to impose criminal penalties upon 
any individual who knowingly aims a laser pointer at an 
aircraft within the special aircraft jurisdiction of the United 
States. The criminal penalties include fines of up to $250,000 
and imprisonment of up to five years.
    Legislative History.--The bill was reported (Amended) by 
the Committee on Judiciary on October 18, 2005. It was passed 
by the House on December 7, 2005. It was amended and passed by 
the Senate on December 22, 2005.

H.R. 1415, the ``NICS Improvement Act of 2005''

    Summary.--Congresswoman Carolyn McCarthy (D-NY) introduced 
H.R. 1415 on March 17, 2005. H.R. 1415 provides money and 
incentives for the states to update and automate their records 
regarding criminal dispositions, mental illness determinations, 
restraining orders and domestic violence misdemeanor 
convictions so those records can easily be included in and 
searched by National Instant Criminal Background Check System 
(``NICS''). These funds are intended to ensure that law-abiding 
citizens can purchase weapons and that prohibited persons 
cannot.
    The integrity and accuracy of the NICS system depends on 
states providing updated and accurate records in electronic 
format. NICS is operated by the FBI, and is used to conduct 
background checks of firearms purchasers before they are 
permitted to buy a firearm. When an individual enters any gun 
dealership to purchase a firearm, the dealer calls the NICS 
Call Center, a state-of-the-art computer facility in 
Clarksburg, West Virginia, or uses the new NICS E-Check online 
system to conduct the background check.
    Legislative History.--On Wednesday, May 3, 2006, the 
Subcommittee on Crime, Terrorism, and Homeland Security held a 
legislative hearing on H.R. 1415. This hearing focused on the 
need to assist states to ensure that they provide complete, 
accurate and updated data to NICS. Testifying before the 
Subcommittee was the sponsor of the bill, the Honorable Carolyn 
McCarthy, Member of Congress, New York, 4th District. The 
Honorable John Dingell, Member of Congress, Michigan, 15th 
District, submitted written testimony regarding H.R. 1415. The 
Subcommittee, via voice vote, reported the bill favorably to 
the full committee on May 18, 2006. On Wednesday, September 6, 
2006, the Committee on the Judiciary conducted a markup on H.R. 
1415.

H.R. 1505, the ``Jessica Lunsford Act''

    Summary.--Congresswoman Ginny Brown-Waite introduced H.R. 
1505 on April 6, 2005. This bill amends the Jacob Wetterling 
Crimes Against Children and Sexually Violent Offender 
Registration Act to direct that State procedures include a 
process under which the State mails a nonforwardable 
verification form at least twice a year to the last known 
address of the person required to register as a sexually 
violent offender, to be returned within ten days after receipt, 
with failure to return the form within the period allowed 
punishable in the same manner as a failure to register.
    Legislative History.--On April 6, 2005, H.R. 1505 was 
referred to the Committee on the Judiciary. On May 10, it was 
referred to the Subcommittee on Crime, Terrorism, and Homeland 
Security. The Subcommittee on Crime, Terrorism and Homeland 
Security held a hearing on H.R. 1505 on June 9, 2005. Similar 
provisions were included in H.R. 4472, the ``Adam Walsh Child 
Protection and Safety Act,'' which was signed into law on July 
27, 2006 (Pub. L. 109-248).

H.R. 1528, the ``Defending America's Most Vulnerable: Safe Access to 
        Drug Treatment and Child Protection Act of 2005''

    Summary.--Chairman F. James Sensenbrenner, Jr. introduced 
H.R. 1528 on April 6, 2005. This legislation strengthens the 
laws regarding trafficking to minors and creating enhanced 
criminal penalties for individuals who traffic drugs near a 
drug treatment facility. It provides sound statutory reforms of 
what are currently ``feel-good,'' but ineffective drug laws 
designed to protect children (drug free school zones and 
prohibitions of distributing drugs to minors). These provisions 
are rarely prosecuted for the simple reason that they carry no 
effective period of incarceration (one year mandatory minimum 
in most cases).
    Legislative History.--On April 6, 2005, H.R. 1528 was 
referred to the Committee on the Judiciary. On April 11, it was 
referred to the Subcommittee on Crime, Terrorism, and Homeland 
Security. The Subcommittee held a hearing on this bill on April 
12, and on that same day forwarded the bill to the Full 
Committee by the Yeas and Nays 6-1. No further action was taken 
on this bill.

H.R. 1704, the ``Second Chance Act of 2005''

    Summary.--Congressman Rob Portman introduced the Second 
Chance Act of 2005 on April 19, 2005. Over a period of two 
years, $146 million in Federal funding would be authorized to 
implement H.R. 1704 with the goal of increasing the success of 
prisoners at the Federal, state, and local levels reentering 
society following incarceration.
    The Second Chance Act of 2005 amends the Omnibus Crime 
Control and Safe Streets Act of 1968 to reauthorize existing 
demonstration projects and reform existing programs to include 
greater use of graduated sanctions that ensure compliance by 
adult and juvenile offenders.
    The bill authorizes the U.S. Attorney General to make a 
grant to provide for the establishment of a National Adult and 
Juvenile Offender Reentry Resource Center. It directs the 
Attorney General to establish an interagency task force on 
Federal programs regarding offender reentry, and authorizes the 
National Institute of Justice and the Bureau of Justice 
Statistics to conduct scientifically valid research on offender 
reentry.
    Included among the bill's provisions for improving reentry 
services are (1) establishing a Reentry Task Force, (2) 
expanding the use of educational testing services and mentors; 
(3) encouraging transitional housing programs; (4) offering a 
continuum of drug treatment services; (5) encouraging continued 
relationships between offenders and family members while 
offenders are incarcerated; and (6) issuing grants for 
successful family-based drug treatment programs. Additionally, 
H.R. 1704 introduces the incentive of a grant program for 
States and local communities to increase in-prison drug 
treatment programs--a key inclusion, considering only 10 
percent of drug addicts receive drug treatment while 
incarcerated.
    Legislative History.--On April 10, 2005, H.R. 1704 was 
referred to the House Committee on the Judiciary. On May 10, 
2005, it was referred to the Subcommittee on Crime, Terrorism, 
and Homeland Security. A legislative hearing was held on 
November 3, 2005, with the following witnesses testifying 
before the Subcommittee: The Honorable Robert L. Ehrlich, Jr., 
Governor, State of Maryland; The Honorable Chris Cannon, Member 
of Congress, 3rd District, Utah; The Honorable Danny K. Davis, 
Member of Congress, 7th District, Illinois; and The Honorable 
Stephanie Tubbs Jones, Member of Congress, 11th District, Ohio. 
A second legislative hearing took place on February 8, 2006, 
entitled ``Second Chance Act (Part II): An Examination of Drug 
Treatment Programs Needed to Ensure Successful Reentry,'' with 
four witnesses testifying: Dr. Nora Volkow, Director, National 
Institute on Drug Abuse; Ken Batten, Director, Office of 
Substance Abuse Services, Virginia Department of Mental Health, 
Mental Retardation and Substance Abuse Services; Ms. Pamela 
Rodriguez, Executive Vice President, Treatment Alternatives for 
Safe Communities (TASC, Inc.); and Ms. Lorna Hogan, Associate 
Director of Sacred Authority, The Rebecca Project for Human 
Rights. A Subcommittee markup session was held for H.R. 1704 on 
February 15, where the bill was forwarded to Full Committee by 
voice vote. The full committee considered H.R. 1704 on July 12, 
July 19 and July 26, 2006. The bill was favorably reported by 
voice vote on July 26, 2006. No further actions were taken on 
H.R. 1704 during the 109th Congress.

H.R. 1751, the ``Secure Access to Justice and Court Protection Act of 
        2005''

    Summary.--Congressman Louie Gohmert introduced H.R. 1751 on 
April 21, 2005. H.R. 1751 is a comprehensive measure designed 
to improve the security and protection of judges, law 
enforcement, prosecutors, and other personnel following several 
high profile violent attacks that resulted in death or serious 
injury.
    Federal, State and local judges and law enforcement have 
suffered from rising threats and deadly attacks against 
courthouse personnel- prosecutors, witnesses, defense counsel 
and others have also come under more regular and violent 
assault. According to the Administrative Office of United 
States Courts, there are almost 700 threats a year made against 
Federal judges, and in numerous cases Federal judges have had 
security details assigned to them for fear of attack by members 
of terrorist associates, violent gangs, drug organizations and 
disgruntled litigants.
    At the State and local level, there is no comprehensive 
data or incident reports. Two States, Missouri and 
Massachusetts, have gathered data that shows an increasing 
trend of violence against courts and court personnel. For the 
years 2003 and 2004, in Massachusetts, assaults and 
disturbances, medical emergencies, and weapons/contraband 
seized constituted the majority of incidents reported (72.12 
percent) for the 2004 reporting period. There were 295 assaults 
and 30 threats against judges or courthouse employees. In 
Missouri, for 2001, 74 percent of reporting courts indicated 
that their court had experienced at least one security incident 
during the reporting period. Of the five most frequent types of 
security incidents, four involved a level of violence or threat 
of violence.
    The legislation enhances criminal penalties for assaults 
and killings of Federal, State and local judges, witnesses, law 
enforcement officers, courthouse personnel and their family 
members; provides grants to State and local courts to improve 
security services, and improves the ability of the U.S. 
Marshals to protect the Federal judiciary.
    The bill also prohibits public disclosure--on the Internet 
and other public sources--of personal information about judges, 
law enforcement, victims and witnesses, to protect Federal 
judges and prosecutors from organized efforts to harass and 
intimidate them through false filings of liens and other 
encumbrances against personal property, and improves 
coordination between the U.S. Marshals and Federal judges. H.R. 
1751 also contains security measures for Federal prosecutors 
handling dangerous trials against terrorists, drug 
organizations and other organized crime figures.
    Legislative History.--On April 21, 2005, H.R. 1751 was 
referred to the Committee on the Judiciary. On April 26, it was 
referred to the Subcommittee on Crime, Terrorism, and Homeland 
Security. A legislative hearing on H.R. 1751 was held on April 
26, 2005. Testimony was received from four witnesses: Judge 
Jane Roth, Chairwoman of Judicial Conference Committee on 
Facilities; Judge Cynthia Kent, 114th Judicial District of 
Texas; United States Attorney Paul McNulty, Eastern District of 
Virginia; and United States Marshal John Clark, Eastern 
District of Virginia. On June 30, 2005, the Subcommittee on 
Crime, Terrorism, and Homeland Security met in open session and 
ordered favorably reported the bill H.R. 1751 as amended by a 
voice vote, a quorum being present. On October 27, 2005, the 
full committee met in open session and ordered favorably 
reported the bill H.R. 1751 as amended by a recorded vote of 26 
to 5, a quorum being present. The bill was placed on the Union 
Calendar No. 148 on November 7, 2005, and was brought before 
the Committee of the Whole on November 9, 2005, where it passed 
by the Yeas and Nays 375-45. The following day, H.R. 1751 was 
received in the Senate, read twice, and referred to the 
Committee on the Judiciary. There have been no further actions 
to date.

H.R. 2318, the ``Protection Against Sexual Exploitation of Children Act 
        of 2005''

    Summary.--Congressman Mark Green (R-WI) introduced the 
Protection Against Sexual Exploitation of Children Act of 2005 
on May 12, 2005. H.R. 2318 amends the Federal criminal code to 
increase mandatory minimum terms of imprisonment for sexual 
offenses against children, including: (1) aggravated sexual 
abuse of children; (2) abusive sexual contact with children 
under age 12; (3) sexual abuse of children under age 12 
resulting in death; (4) sexual exploitation of children; (5) 
activities relating to material involving the sexual 
exploitation of children; (6) activities relating to material 
constituting or containing child pornography; (7) using 
misleading domain names to direct children to harmful material 
on the Internet; and (8) production of sexually explicit 
depictions of children; and (9) conduct relating to child 
prostitution.
    H.R. 2318 also includes the definition of a ``Federal sex 
offense'' for purposes of provisions regarding mandatory life 
imprisonment for repeat sex offenses against children.
    Legislative History.--On May 12, 2005, H.R. 2318 was 
referred to the Committee on the Judiciary. On June 3, it was 
referred to the Subcommittee on Crime, Terrorism, and Homeland 
Security, where a legislative hearing was held on June 7. 
Similar provisions were included in H.R. 4472, the ``Adam Walsh 
Child Protection and Safety Act,'' which was signed into law on 
July 27, 2006 (Pub. L. 109-248).

H.R. 2388, the ``Prevention and Deterrence of Crimes Against Children 
        Act of 2005''

    Summary.--Congressman Mark Green (R-WI) introduced the 
Prevention and Deterrence of Crimes Against Children Act of 
2005 on May 17, 2005. H.R. 2388 rewrites provisions of the 
Federal criminal code regarding penalties for crimes against 
children to require a person convicted of a Federal crime of 
violence against an individual under age 18 to be sentenced to 
(1) death or life imprisonment if the crime results in the 
death of a person under age 18; (2) life or at least 30 years 
imprisonment if the crime is a kidnaping, sexual assault, or 
maiming, or results in serious bodily injury; (3) life or at 
least 20 years imprisonment if the crime results in bodily 
injury; (4) life or at least 15 years imprisonment if a 
dangerous weapon was used during and in relation to the crime; 
and (5) life or at least ten years imprisonment in any other 
case.
    H.R. 2388 denies a court, justice, or judge jurisdiction to 
consider claims relating to the judgment or sentence in an 
application for writ of habeas corpus on behalf of a person in 
custody pursuant to the judgment of a State court for a crime 
that involved the killing of a person under age 18. The bill is 
applicable to pending cases as well as proceedings.
    Legislative History.--On May 17, 2005 H.R. 2388 was 
referred to the Committee on the Judiciary. On June 3, it was 
referred to the Subcommittee on Crime, Terrorism, and Homeland 
Security, where a legislative hearing was held on June 7. 
Similar provisions were included in H.R. 4472, the ``Adam Walsh 
Child Protection and Safety Act,'' which was signed into law on 
July 27, 2006 (Pub. L. 109-248).

H.R. 2423, the ``Jacob Wetterling, Megan Nicole Kanka, and Pam Lychner 
        Sex Offender Registration and Notification Act''

    Summary.--Congressman Mark Foley introduced H.R. 2423 on 
May 18, 2005. H.R. 2423 repeals existing provisions governing 
state registration programs for persons convicted of a criminal 
offense against a minor or of a sexually violent offense and 
directs the Attorney General to carry out a Jacob Wetterling, 
Megan Nicole Kanka, and Pam Lychner Sex Offender Registration 
and Notification program under which a ``covered individual'' 
(an individual convicted of a listed offense against a minor) 
shall, for that individual's life, provide to the Attorney 
General specified information, including any change of address 
and employer. The bill also lists exceptions and sets penalties 
for violations.
    Legislative History.--On May 18, 2005, H.R. 2423 was 
referred to the Committee on the Judiciary. On June 3, it was 
referred to the Subcommittee on Crime, Terrorism, and Homeland 
Security. The Subcommittee held a hearing on H.R. 2423 on June 
9, 2005. Similar provisions were included in H.R. 4472, the 
``Adam Walsh Child Protection and Safety Act,'' which was 
signed into law on July 27, 2006 (Pub. L. 109-248).

H.R. 2796, the ``DNA Fingerprinting Act of 2005''

    Summary.--Congressman Mark Green (R-WI) introduced the DNA 
Fingerprinting Act of 2005 on June 8, 2005. H.R. 2796 amends 
the DNA Identification Act of 1994 to expand the scope of DNA 
samples to be included in the Combined DNA Index System 
(CODIS). It repeals exclusions from CODIS of (1) DNA profiles 
from arrestees who have not been charged in an indictment or 
information with a crime; and (2) DNA samples that are 
voluntarily submitted solely for elimination purposes. It also 
appeals provisions regarding (1) requirements for expungement 
of DNA analysis from CODIS in cases where the convictions are 
overturned; and (2) authority for any person who is authorized 
to access CODIS for purposes of including DNA information to 
access it to carry out a one-time keyboard search.
    Additionally, this bill amends the DNA Analysis Backlog 
Elimination Act of 2000 to authorize the Attorney General to 
(1) collect DNA samples from individuals who are arrested or 
detained under U.S. authority; (2) delegate this function 
within the Department of Justice; and (3) authorize and direct 
any other U.S. agency that arrests or detains individuals or 
supervises individuals facing charges to carry out any function 
and exercise any power of the Attorney General.
    Legislative History.--On June 8, 2005, H.R. 2796 was 
referred to the Committee on the Judiciary and then to the 
Subcommittee on Crime, Terrorism, and Homeland Security. A 
legislative hearing was held on June 9, 2005. Similar 
provisions were included in H.R. 4472, the ``Adam Walsh Child 
Protection and Safety Act,'' which was signed into law on July 
27, 2006 (Pub. L. 109-248).

H.R. 2797, the ``Amie Zyla Act of 2005''

    Summary.--Congressman Mark Green (R-WI) introduced the Amie 
Zyla Act of 2005 on June 8, 2005. H.R. 2797 amends the Jacob 
Wetterling Crimes Against Children and Sexually Violent 
Offender Registration Act to extend registration requirements 
to any person adjudicated as a juvenile delinquent for conduct 
that would be an offense requiring registration if committed by 
an adult.
    Legislative History.--On June 8, 2005, H.R. 2797 was 
referred to the Committee on the Judiciary and then to the 
Subcommittee on Crime, Terrorism, and Homeland Security. A 
legislative hearing was held on June 9. Similar provisions were 
included in H.R. 4472, the ``Adam Walsh Child Protection and 
Safety Act,'' which was signed into law on July 27, 2006 (Pub. 
L. 109-248).

H.R. 2965, the ``Federal Prison Industries Competition in Contracting 
        Act of 2006''

    Summary.--The Federal Bureau of Prisons (BOP) is 
responsible for the custody and care of more than 181,000 
Federal offenders. Approximately 85 percent of these inmates 
are confined in Bureau-operated correctional facilities or 
detention centers. Prisoners who are physically able to work 
must labor in some capacity five days a week. The Federal 
Prison Industries (FPI), a government corporation that operates 
the BOP's correctional program, employs inmates in the Federal 
prison population to manufacture goods for and provide services 
to Federal agencies. About 20 percent of inmates work in FPI 
factories. They generally work in factory operations, such as 
metals, furniture, electronics, textiles, and graphic arts. FPI 
work assignments pay from 23 cents to $1.15 per hour.
    Although FPI is precluded from selling its goods in the 
commercial market under 18 U.S.C. section 1761, the BOP has 
taken the position that the language prohibiting interstate 
transport of goods does not prohibit it from selling services 
in the commercial market. Many private companies and small 
businesses have trouble competing with the advantages the 
prison industry enjoys, such as a guaranteed market for its 
products and reduced costs for labor and capital.
    In FY 2004, FPI operated 102 factories in 71 correctional 
facilities marketing products and services in approximately 150 
broad classes under the trade name UNICOR. In FY 1998, FPI had 
total sales of $534.2 million and employed 20,200 inmates 
(18.3%). In FY 2004 employed 19,337 inmates, with a total sales 
of $802.7 million and a profit of $120.4 million. Federal 
agencies are required by law, under 18 U.S.C. Sec. 4124, to 
purchase FPI products if a product is available that meets the 
agencies' requirements and does not exceed current market 
prices. This provision in the law, deemed ``mandatory source 
preference,'' does not specify how the current market price 
should be determined. The General Accounting Office (GAO) 
concluded in a 1998 report to Congress that ``the only 
limitation on FPI's price is that it may not exceed the upper 
end of the current market price range.''
    The ``mandatory source preference'' given FPI is viewed as 
an exception to the Federal Acquisition Regulation standards 
established for a ``fair and reasonable price.'' Thus, agencies 
are required to purchase products from FPI regardless of 
whether FPI provides the agency with a price it considers 
reasonable or factually supports the price it offered. Recent 
changes in the law at 10 U.S.C. Sec. 2410n allow agency 
contracting officers to determine if a product offered by FPI 
is ``comparable to products available from the private sector 
that best meet the Department's needs in terms of price, 
quality, and time of delivery.'' These changes do not eliminate 
the ``mandatory source preference''. If a contracting officer 
finds that FPI's offered product is not comparable, then the 
purchase is to be made using competitive procedures. There is 
no need to obtain a so-called ``waiver'' from FPI prior to 
making the purchase. Section 2410n only requires that FPI be 
accorded the same right to compete as any other eligible 
offeror, but does not grant to FPI any preferential status in 
the competitive process.
    H.R. 2965 would fundamentally alter the 1934 authorizing 
statute of Federal Prison Industries (``FPI'') requiring that 
FPI compete for its business opportunities and no longer be 
able to take them on a sole-source basis. Currently, all 
Federal agencies must purchase products offered by FPI, which 
is commonly referred as FPI's ``mandatory source'' status. FPI, 
rather than the buying agency, determines if FPI's offered 
product and delivery schedule meets the mission needs of the 
buying agency. FPI, rather than the buying agency, determines 
the reasonableness of FPI's offered price.
    This bill would gradually phase out the exclusive right of 
FPI, deemed ``mandatory source,'' to sell goods on an 
exclusively non-competitive basis to federal agencies by 
October 1, 2011. The bill also changes the manner in which FPI 
sells its products and services to the various Federal 
departments and agencies. During the phase-out period, FPI 
would be required to provide the agencies with a product that 
meets its needs at a ``fair and reasonable price'' in a timely 
manner.
    Today, FPI's offered price meets the ``current market'' 
price standard if it does not exceed the highest price offered 
to the Government for a comparable item, even if no actual 
sales have been made at that price. Under the Federal 
Acquisition Regulations (FAR), a federal manager must obtain 
FPI's unilateral permission to even solicit competitive offers 
from the private sector in an effort to obtain ``best value'' 
for the taxpayer dollars entrusted to such manager's care.
    This legislation establishes new competitive procedures for 
government procurement of products or services that are offered 
for sale by FPI. H.R. 2965 requires that FPI sales to its 
Federal agency customers be made through contracts won on a 
competitive basis, for both products and services. Like other 
suppliers to the Federal Government, FPI would be required to 
fulfill its contractual obligations in a timely manner.
    To enable FPI to adjust to the requirement that it obtain 
contracts on a competitive basis, H.R. 2965 provides FPI with a 
five-year transitional period to adjust from its sole-source 
dealings with its currently captive Federal agency customers. 
Under this phase-out authority, Federal agencies could continue 
to contract with FPI on a noncompetitive basis through October 
1, 2011, subject to annually declining caps on the use of the 
preferential contracting authority. During the phase-out 
period, FPI would be required to provide a buying agency with a 
product that meets the buying agency's needs, when needed, at a 
``fair and reasonable price.''
    To assure that the loss of a contract by FPI does not 
endanger the safety of a Federal Correctional Institution 
(FCI), H.R. 2965 contains a provision that permits the Attorney 
General to authorize a sole source contract award to prevent 
idleness ``that could reasonably be expected to significantly 
endanger the safe and effective administration'' of the FPI at 
which the work required by the contract is scheduled to be 
performed. To prevent abuse of this sole-source authority by 
FPI, the provision requires that the Attorney General's 
decision to authorize the sole source contract award be 
supported by findings by the FCI's warden.
    H.R. 2965 does not alter a broad array of advantages that 
FPI enjoys with respect to private sector firms. The great 
majority of inmates working for FPI will continue to be paid at 
rates below the minimum wage. FPI factory space is provided by 
the host FCI, and is constructed at taxpayer expense. 
Similarly, FPI receives its utilities from the host FCI. As a 
Government corporation, FPI may receive industrial equipment 
excess without cost from other Departments and agencies, 
including the substantial quantities of industrial equipment 
returned to the Department of Defense by its contractors. FPI 
has had a $20 million line-of-credit from the U.S. Treasury on 
an interest-free basis since 1988.
    In addition to requiring that FPI compete for its Federal 
agency sales, H.R. 2965 improves the process by which FPI's 
Board of Directors considers proposals from FPI's career 
management staff to authorize production expansion. For the 
first time, it extends the public participation and Board 
approval procedures to expansion proposals relating to services 
as well as expansion proposals relating to products.
    The legislation also substantially modifies the structure 
of FPI's Board of Directors. Currently, the FPI Board of 
Directors is composed of six-members, appointed by the 
President. H.R. 2965 replaces the current Board with an eleven-
member Board, with three members representing business, three 
members representing labor, one member with special expertise 
in inmate rehabilitation techniques, one member representing 
victims of crime, one member representing inmate workers, and 
two additional members ``whose background and expertise the 
President deems appropriate.''
    The legislation includes provisions that substantially 
expand alternative rehabilitative opportunities for more 
Federal inmates to better prepare them for a successful return 
to society. The legislation also seeks to provide increased 
opportunities to participate in programs providing fundamental 
remedial education as well as modern hands-on vocational and 
apprenticeship training. Additionally, the legislation 
authorizes alternative inmate work opportunities in support of 
non-profit, community service organizations. For example, FPI 
workers can provide services to build or recondition for 
donation to nonprofit organizations to assist low income 
individuals who would have difficulty purchasing these products 
on their own.
    H.R. 2965 also includes a demonstration project to test the 
cognitive abilities and perceptual skills of Federal inmates to 
maximize rehabilitation efforts and reduce recidivism. Finally, 
H.R. 2965 adds a new Section 13 ``Transitional Personnel 
Management Authority'' to provide some relief to correctional 
officers, whose staff positions are no longer funded from 
appropriations to the Federal Bureau of Prisons, but through 
non-appropriated funds, completely dependent upon revenue from 
FPI ``sales.''
    The legislation, as amended by the Committee, includes 
provisions, which were developed over a six-month period with 
representatives of the Attorney General. All of the provisions 
are acceptable to the broad array of business organizations and 
labor unions participating in the Federal Prison Industries 
Competition in Contracting Coalition. The changes are additions 
to the text of H.R. 2965 as introduced.
    The legislation, as amended, creates a new Work-Based 
Employment Preparation Program under which private-sector firms 
can enter into agreements with FPI to prepare inmates for re-
entry through real-world work coupled with structured 
apprenticeship-like training. The byproducts of these work-
based training programs, both the production of products or the 
furnishing of services may be sold in the commercial market. To 
avoid unfair competition with non-inmate workers, and the firms 
that employ them, the products of the Work-Based Employment 
Training Program would be restricted to products or services 
for which there is no domestic production. The Secretary of 
Labor, in consultation with the Attorney General, is directed 
to issue an inmate training wage under the authority of the 
Fair Labor Standards Act, which would be less than the Federal 
Minimum Wage. H.R. 2965 includes a sense of Congress that the 
wage set by the Secretary should be no less than 50% of the 
Federal minimum wage under the Federal Labor Standards Act.
    H.R. 2965, as amended, is designed to further facilitate a 
successful transition by FPI from simply taking contracts 
pursuant to its status as a mandatory source and winning 
contracts competitively. The legislation adopted by the 
Committee includes a provision that would allow FPI to be 
listed as providing goods and services comparable to private-
sector firms holding contracts under Multiple Award Schedules 
(MAS) Program administered by the General Services 
Administration, although Government corporations are ineligible 
to be a MAS Program contract holders. This will enable FPI to 
keep its offering clearly in the view of the Federal buyer.
    H.R. 2965 requires Federal buyers to solicit offers from 
FPI, an advantage not enjoyed by private-sector firms who must 
find their Federal contract opportunities. The legislation, as 
amended, also requires that a solicitation shal be made to FPI 
first if the product or service to be acquired would otherwise 
be furnished by a contractor outside the United States.
    The legislation, as amended, also gives FPI authority to 
file agency bid protests, if FPI feels the Federal buyer has 
not evaluated fairly FPI's offer. No other Government 
corporation has this authority. FPI is authorized to perform a 
Government contract won competitively although the FPI Board of 
Directors has not authorized FPI to produce such a new product 
or service. Additionally, under the legislation as adopted the 
unique costs of dealing with an inmate population may be 
considered in offers for cost-reimbursement contracts by FPI.
    During the five-year period of transition to competition, 
the legislation adopted by the Committee permits the FPI Board 
of Directors to allow FPI to take more than a reasonable share 
of the market for an authorized product or service, if needed 
to maintain inmate employment. To avoid an displacement of 
current inmate workers, H.R. 2965, as amended, ``grandfathers'' 
all of FPI's current agreements with private-sector firms that 
result in the introduction of inmate-furnished services in the 
commercial market. Thereafter, the firms can apply to 
participate in the Work-based Employment Preparation Program. 
H.R. 2965, as introduced, already grandfathers state or local 
prison industry programs to complete their existing agreements. 
Thereafter, they can continue their programs under the PIE 
(Prison Industry Enhancement) Program, which has provided entry 
into the commercial market for state or local prison-made 
products or inmate-furnished services, since 1979.
    Legislative History.--This legislation was introduced on 
June 17, 2005, and referred to the Committee on Judiciary 
Subcommittee on Crime, Terrorism, and Homeland Security. A 
hearing on the legislation was held at the Subcommittee on July 
1, 2005. Testimony was received from four witnesses, 
representing four organizations, with additional material 
submitted by numerous individuals and organizations. On July 
12, 2006, the Committee met in open session and ordered 
favorably reported the bill H.R. 2965, with an amendment, by 
voice vote, a quorum being present. On September 14, 2006, the 
House passed H.R. 2965 by a vote of 362-57.

H.R. 3035, the ``Streamlined Procedures Act of 2005''

    Summary.--The Streamlined Procedures Act of 2005 was 
introduced by Congressman Daniel Lungren (R-CA) on June 22, 
2005, for the purpose of amending the Federal judicial code to 
revise the law and procedures for habeas corpus petitions. It 
eliminates delays and unnecessary litigation, adopting a 
simple, clear standard for allowing all claims to either go 
forward in Federal court or be dismissed, without the need for 
additional years of litigation in State court.
    H.R. 3035 denies or restricts the jurisdiction of Federal 
courts to hear habeas corpus petitions that: (1) have been 
procedurally barred in a state court; (2) are based upon errors 
in sentences or sentencing ruled as harmless error by a state 
court; (3) pertain to capital cases; or (4) challenge the 
exercise of a States's executive clemency or pardon power.
    It amends deadlines for filing appeals to Federal courts of 
State habeas corpus decisions and limits the ability of habeas 
corpus petitioners to amend petitions or modify or add 
additional claims. H.R. 3035 requires requests for financial 
support for petitioners in a habeas corpus proceeding to be 
decided by a judge other than the judge presiding over such 
proceeding. Additionally, it requires any amount of financial 
support authorized by a judge to be publicly disclosed.
    Legislative History.--H.R. 3035 was referred to the 
Committee on the Judiciary on June 22, 2005. On the 27th, it 
was referred to the Subcommittee on Crime, Terrorism, and 
Homeland Security where legislative hearings were held on June 
30th and November 10th. Individuals who submitted testimony for 
the first hearing included Mr. Barry Sabin, Chief of the 
Counterterrorism Section for the Criminal Division at the U.S. 
Department of Justice; The Honorable Joshua K. Marquis, 
District Attorney for Clatsop County, Oregon; Mr. Ron 
Eisenberg, Deputy District Attorney for Philadelphia, 
Pennsylvania; and Mr. Bernard E. Harcourt, Professor of Law and 
Faculty Director of Academic Affairs at the University of 
Chicago. For the second hearing, the following witnesses 
testified before the Subcommittee: Mr. Tom Dolgenos, Chief of 
the Federal Litigation Unit in the Philadelphia District 
Attorney's Office; Mr. Kent Cattani, Chief Counsel of the 
Capital Litigation Section of the Arizona Attorney General's 
Office; Ms. Mary Ann Hughes, a crime victim from Chino Hills, 
California; and Ms. Ruth Friedman, a solo practitioner in 
Washington, DC. There have been no further actions concerning 
this bill.

H.R. 3132, the ``Children's Safety Act of 2005''

    Summary.--Chairman F. James Sensenbrenner, Jr. introduced 
H.R. 3132 on June 30, 2005. H.R. 3132 is a comprehensive bill 
to address the growing epidemic of sexual violence against 
children through renewing and strengthening existing laws 
intended to protect children.
    Statistics show that 1 in 5 girls and 1 in 10 boys are 
sexually exploited before they reach adulthood, yet less than 
35 percent are reported to authorities. This problem is 
exacerbated by the number of children who are solicited 
online--according to the Department of Justice 1 in 5 children 
(10 to 17 years old) receive unwanted sexual solicitations 
online. Moreover, sex offenders have significant recidivism 
rates. In a 2001 report, The Center for Sex Offender Management 
found that sexual offense recidivism rates are underreported 
and that the number of subsequent sex offenses revealed through 
unofficial sources was 2.4 times higher than the number that 
was recorded in official reports. Research using information 
generated through polygraph examinations on a sample of 
imprisoned sex offenders with fewer than two known victims (on 
average), found that these offenders actually had an average of 
110 victims and 318 offenses. Another polygraph study found a 
sample of imprisoned sex offenders to have extensive criminal 
histories, committing sex crimes for an average of 16 years 
before being caught.
    Recent events have underscored gaps and problems with 
existing Federal and state laws, as well as implementation of 
sex offender registration and notification programs. There is a 
wide disparity among the state programs in the registration 
requirements and notification obligations for sex offenders. 
Given the transient nature of sex offenders and the inability 
of the States to track these offenders, it is conservatively 
estimated that approximately 20 percent of 400,000 sex 
offenders are ``lost'' under state sex offender registry 
programs. In addition, there is a disparity among state 
programs as to the existence of Internet availability of 
relevant sex offender information, and the specific types of 
information included in such web sites. Recently, the Justice 
Department announced that it has begun implementing a public, 
national sex offender registry, linking together the State 
registries into one national website, starting with the linking 
of 22 State Internet web sites for search purposes.
    H.R. 3132 includes much-needed reforms of the Sex Offender 
and Registration program by (1) expanding the coverage of 
registration and notification requirements to a larger number 
of sex offenders; (2) increasing the duration of registration 
requirements for sex offenders; (3) requiring States to provide 
Internet availability of sex offender information; (4) ensuring 
timely registration by sex offenders and verification; (5) 
requiring sex offenders to register in person and on a regular 
basis, and to provide detailed personal information whenever 
they move to a new area to live, attend school or work; (6) 
requiring a State to notify the Attorney General, law 
enforcement agencies, schools, housing agencies and 
development, background check agencies, social service agencies 
and volunteer organizations in the area where a sex offender 
may live, work or attend school; (7) authorizing demonstration 
programs for new electronic monitoring programs (e.g. anklets 
and GPS monitoring which will require examination of multi-
jurisdictional monitoring procedures); (8) creating a new 
National Sex Offender Registry; (9) creating a new Federal 
crime punishable by a five year mandatory minimum when a sex 
offender fails to register; and (10) authorizing the U.S. 
Marshals to apprehend sex offenders who fail to register and 
increases grants to States to apprehend sex offenders who are 
in violation of the registration requirements.
    The bill also revises laws relating to the use of DNA 
evidence, increases penalties for violent crimes committed 
against children and sexual exploitation of children; 
streamlines habeas review of State death sentences imposed 
against child killers; and protects foster children by: (1) 
requiring States to complete background checks using national 
criminal history databases before approving a foster or 
adoptive parent placement, and to check child abuse registries; 
(2) authorizing child welfare agencies to obtain read-only 
access to national criminal history databases; (3) requiring 
sex offenders to submit to searches as a condition of 
supervised release or probation; and (4) establishing 
procedures for civil commitment of Federal sex offenders who 
are dangerous to others because of serious mental illness, 
abnormality or disorder.
    Legislative History.--On June 30, 2005, H.R. 3132 was 
referred to the Committee on the Judiciary. On July 27, it was 
referred to the Subcommittee on Crime, Terrorism, and Homeland 
Security. The Committee's Subcommittee on Crime, Terrorism and 
Homeland Security held a series of three hearings on child 
crime issues related to H.R. 3132, on June 7 and 9, 2005. The 
first hearing focused on Rep. Mark Green's legislative 
proposals, H.R. 2138, ``The Prevention and Deterrence of 
Violence Against Children's Act,'' and H.R. 2188, ``The 
Protection Against Sexual Exploitation of Children Act.'' 
Testimony was received from four witnesses, representing the 
United States Department of Justice, the Attorney General from 
the State of Florida, Ms. Carol Fornoff, the mother of Christy 
Ann Fornoff, who was murdered in 1984, and a representative 
from the Federal Public Defender in Montana. The second 
hearing, on June 9, 2005, focused on legislative proposals 
relating to child safety. Testimony was received from the 
Honorable Mark Foley, from the 16th Congressional District in 
the State of Florida, the Honorable Ted Poe, from the 2nd 
Congressional District in the State of Texas, the Honorable 
Ginny Brown-Waite, from the 5th Congressional District in the 
State of Florida, and the Honorable Earl Pomeroy, who serves At 
Large in the State of North Dakota. The third hearing, which 
took place later that same day, focused on protecting children 
from sexual predators and violent criminals. Testimony was 
received from a representative from the United States 
Department of Justice; Ernie Allen, President of the National 
Center for Missing and Exploited Children; Amie Zyla, a child 
victim of sexual assault by a convicted sex offender; and Dr. 
Fred Berlin, Associate Professor in the Department of 
Psychiatry at the Johns Hopkins University School of Medicine. 
On June 30, 2005, H.R. 3132 was referred to the Committee on 
the Judiciary, where on July 27 it was both marked up and 
ordered to be reported by the Yeas and Nays: 22-4. The bill was 
brought before the Committee of the Whole House on September 
14, where it passed by the Yeas and Nays: 371-52. The following 
day, H.R. 3132 was received in the Senate, read twice, and 
referred to the Committee on the Judiciary. There have been no 
further actions to date.

H.R. 3889, the ``Methamphetamine Epidemic Elimination Act''

    Summary.--Congressman Mark E. Souder introduced H.R. 3889 
on September 22, 2005. H.R. 3889 was introduced to provide 
better management of legal precursor chemicals that are 
frequently diverted for the production of methamphetamine and 
to provide tools to Federal, state, and local law enforcement. 
Methamphetamine is highly addictive and takes a tremendous 
physical and mental toll on an addict.
    Production of methamphetamine can occur on a large or small 
scale. A key component of the narcotic is a common cold remedy, 
pseudoephedrine (PSE). Diversion of PSE for the purpose of 
producing methamphetamine occurs from any point from the 
manufacturing and wholesale of the drug all the way to the 
point of purchase by a consumer. Because methamphetamine can be 
made in large or small quantities, producers range from large 
international drug cartels operating out of ``superlabs'' to 
small ``mom and pop'' producers that can operate in an area as 
small as an automobile trunk.
    The amount of money needed to produce methamphetamine is 
minimal. Most of the ingredients are easily obtainable and 
producers frequently steal those ingredients that they cannot 
afford. Addicts will frequently band together in collectives to 
pool ingredients in order to ensure that there are enough to 
produce the drug. Little knowledge is needed to make the drug, 
though the process is highly volatile and produces large 
quantities of toxic byproducts that are toxic to humans and the 
environment.
    Because of the diverse sources of methamphetamine, any 
strategy to try and stem the production of the drug has to 
address both the large-scale production of the drug by 
established cartels and the small-scale production by small 
groups of users or individuals. H.R. 3889 is designed to 
provide a multifaceted solution to these problems by (1) 
placing restrictions on the amount of the precursor chemical 
PSE that can be sold at retail in order to stem methamphetamine 
production by smaller producers, (2) authorizing the 
establishment of import and manufacturing quotas, (3) 
increasing penalties for trafficking precursor chemicals with 
the intent to manufacture, and (4) modifying the amount of 
methamphetamine needed for the application of ``kingpin'' 
enhancements.
    Legislative History.--On September 26, 2005, H.R. 3889 was 
referred to the Subcommittee on Crime, Terrorism, and Homeland 
Security. A legislative hearing was held on September 27, with 
the following witnesses testifying before the Subcommittee: The 
Honorable Mark Souder, Member of Congress, 3rd District, 
Indiana; the Honorable Mark Kennedy, Member of Congress, 6th 
District, Minnesota; Mr. Joseph T. Rannazzisi, Deputy Chief, 
Office of Enforcement Operations, U.S. Drug Enforcement 
Administration; and Dr. Barry M. Lester, Professor of 
Psychiatry & Human Behavior and Pediatrics, Brown University 
Medical School. A Subcommittee markup session was held for H.R. 
3889 on November 3, 2005, where it was forwarded to Full 
Committee by the Yeas and Nays: 8-2. The bill was reported at a 
Full Committee markup on November 9 by the Yeas and Nays: 31-0. 
H.R. 3889 was placed on Union Calendar No. 167 on November 17, 
and was later included in H.R. 3199, the USA PATRIOT 
Improvement and Reauthorization Act of 2005.

H.R. 4132 the ``Law Enforcement Cooperation Act of 2006''

    Summary.--Congressman William Delahunt (D-MA) introduced 
H.R. 4132 on October 25, 2005. H.R. 4132 amends the Federal 
criminal code to prescribe penalties to be imposed on any 
officer or employee of the Federal Bureau of Investigation 
(FBI) who obtains information that a confidential informant or 
other individual has committed a serious violent felony (as 
defined in section 3559 of title 18) that violates State or 
local law and who knowingly and intentionally fails to promptly 
inform the chief State law enforcement officer and local 
prosecuting official. An offense under this section is 
punishable by a fine or imprisonment up to five years, or both. 
The FBI is required to notify the Attorney General that an 
officer or employee has provided information under this 
section.
    In September 2005, the Department of Justice Office of the 
Inspector General (OIG) released a report entitled, ``The 
Federal Bureau of Investigation's Compliance with the Attorney 
General's Investigative Guidelines'' (the Report). OIG examined 
four areas of FBI's compliance with the Attorney General's 
Investigative Guidelines (Guidelines). The four areas examined 
were: Confidential Informants; Undercover Operations; General 
Crimes, Racketeering Enterprise and Terrorism Enterprise 
Investigations; and Consensual Monitoring. In the Report, the 
OIG reviewed the FBI's implementation of the revised 
Investigative Guidelines with two main objectives: (1) to 
assess the FBI's compliance with the revised guidelines; and 
(2) to evaluate the procedures that the FBI employed to ensure 
that the revised Guidelines were properly implemented. The most 
significant problems cited were failures to comply with the 
Confidential Informant Guidelines. In fact, the OIG identified 
one or more Guideline violations in 87 percent of the 
confidential informant files examined.
    The Report issued by the OIG was the culmination of an 
exhaustive review regarding various issues of compliance with 
the Guidelines. The Guidelines were adopted in 1976, with 
revisions added periodically at the behest of the then-Attorney 
General, and were adopted in place of statutory recourse for 
the FBI and other Federal Law Enforcement Agencies. The latest 
revision of the Attorney General's Guidelines, the Ashcroft 
Guidelines, were adopted without the customary Congressional 
consultation. In the past the Attorney General and FBI 
Leadership have uniformly agreed that the Guidelines were 
necessary and desirable, and that the FBI's adherence to the 
Guidelines were the reason why the FBI should not be subjected 
to a general legislative charter or to statutory control. 
However, failure to adequately comply with the Guidelines 
brings into question whether legislative alternatives may be 
necessary.
    Although the Report looked at the general compliance by the 
FBI with several portions of the Guidelines, the relevant 
portion for the purposes of this legislation is that addressing 
the Bureau's effectiveness regarding Agent relationships with 
Confidential Informants (CIs), an area that the Report 
identified as the most problematic.
    Twelve FBI offices of various sizes were selected and a 
random sampling of between 9 to 11 CI files from each office 
(for a total of 120) were selected in order to ascertain 
compliance levels. In addition, various personnel from the FBI 
and U.S. Attorney's offices were interviewed to supplement and 
explain the results of the file analysis. The OIG determined 
that there existed at least one compliance error in 87 percent 
of the files examined. As an explanation for this finding, 
personnel from field offices, as well as personnel from FBI 
Headquarters, indicated that the Guidelines are too cumbersome 
and, as such, discourage agents from adhering to the 
Guidelines. Similarly, a majority of the Special Agents in 
Charge (SAC) indicated that while they believed the Guidelines 
are realistic, the accompanying paperwork is too cumbersome. 
These complaints about and failure to adhere to the Guidelines 
is an apparent departure from previous feedback about the 
priority placed on adherence to the Guidelines, as indicated by 
former FBI Director William Webster who stated that the 
Guidelines were ``scrupulously observed'' in regard to handling 
informants.
    Furthermore, the OIG found significant problems in the 
FBI's compliance with the Guidelines occurring primarily in the 
areas of: suitability reviews; cautioning of informants about 
the limits of their activities; the authorization of otherwise 
illegal activity; documentation and notice of unauthorized 
illegal activity by informants; and the deactivation of 
informants.
    Legislative History.--On July 12, 2006, the Judiciary 
Committee held a legislative markup, reporting the bill 
favorably as amended by voice vote (H. Rept. 109-564). No 
further action was taken in the 109th Congress.

H.R. 4239, the ``Animal Enterprise Terrorism Act''

    Summary.--In recent years, there has been an increase in 
the number and severity of crimes of violence and intimidation 
animal rights activists groups have been employing to disrupt 
the business of anyone engaged in any enterprise that uses or 
sells animals or animal products. There has also been a trend 
by these groups to attack not only employees for companies 
doing such research, but also those with any type of remote 
link to such research. These activities have been used to 
target employees of private companies, banks, underwriters, 
insurance companies, investors, university research facilities 
and even the New York Stock Exchange.
    Tactics employed by the fringe activists include 
threatening letters, emails and phone calls; repeated organized 
protests at employees homes; and blanketing home neighborhoods 
with flyers referring to a specific company employee or 
researcher as a puppy killer or pedophile. Activists have been 
tied to phone calls in the middle of the night from the 
``morgue'' claiming a relative has been killed and the employee 
should come identify the body immediately. Some of the more 
violent activities include acts of arson; acid poured on cars 
at peoples homes; sending razor blades in the mail; and spray 
painting defamatory language on people's homes. In the United 
Kingdom, where many of these groups originate, activists have 
been linked to the beating of a company CEO; explosives devices 
sent to the home of employees; and pipe bombs attached to 
employees cars. Underground networks of these groups advocate 
for these types of activities and applaud individuals who 
employ these tactics.
    H.R. 4239 would expand the reach of the Federal criminal 
laws to specifically address the use of force, violence or 
threats against not only the animal enterprise organizations, 
but also those who do business with them. Specifically, the 
legislation would prohibit the intentional damaging of property 
of a person or entity having a connection to, relationship 
with, or transactions with an animal enterprise and make it a 
criminal act to intentionally place a person in reasonable fear 
of death or serious bodily injury to that person or their 
family because of their relationship with an animal enterprise. 
The legislation further provides for increased penalties for 
these activities and makes crimes under 18 U.S.C. 43 eligible 
for an application for an order allowing interception of wire 
or oral communications under 18 U.S.C. 2516.
    Finally, the legislation expands the definition of 
``economic damage'' for purposes of this section to include 
loss of property, the costs incurred because of a lost 
experiment, and lost profits. It also includes a definition of 
the term ``economic disruption,'' to mean losses or increased 
costs resulting from threats, acts of violence, property 
damage, trespass, harassment, or intimidation against a person 
or entity on account of their relationship with an animal 
enterprise. This does not include lawful boycott.
    Since the bill has been introduced, the Committee has been 
approached by a couple of groups with concerns about ensuring 
First Amendment protections are included for lawful protests, 
boycotts, and other activities. The legislation was not 
intended to infringe on these rights in any way. Accordingly, a 
manager's amendment clarifying that those rights will continue 
to be protected was drafted.
    The amendment in the nature of a substitute addresses 
concerns regarding lawful protests that were raised during the 
hearing and by outside groups. The amendment in the nature of a 
substitute includes a rule of construction to that clarifies 
that nothing in the bill shall be construed to prohibit any 
expressive conduct protected by the First Amendment. 
Additionally, the amendment ensures that mere civil 
disobedience activities that are nonetheless illegal shall not 
be prosecuted as a felony; instead these activities will be 
treated as misdemeanors.
    Legislative History.--H.R. 4239 was introduced on November 
4, 2005. A hearing was held at the Subcommittee on Crime, 
Terrorism, and Homeland Security on May 23, 2006. No further 
actions have occurred.

H.R. 4472, the ``Adam Walsh Child Protection and Safety Act of 2006''

    Summary.--Chairman F. James Sensenbrenner, Jr. introduced 
H.R. 4472 on December 8, 2005. The legislation was a 
compilation of several violent crime reduction bills including 
H.R. 1751, the ``Secure Access to Justice and Court Security 
Act of 2005''; H.R. 3132, the ``Children's Safety Act of 
2005''; and H.R. 5749, the ``Internet Stopping Adults 
Facilitating the Exploitation of Today's Youth (SAFETY) Act.''
    Legislative History.--On December 8, 2005, H.R. 4472 was 
referred to the Committee on the Judiciary. The Committee's 
Subcommittee on Crime, Terrorism and Homeland Security held a 
series of three hearings on child crime issues related to H.R. 
4472, on April 5 and 26, and June 7 and 9, 2005. On March 8, 
2006, H.R. 4472 was considered under suspension of the rules 
and passed by voice vote. On July 20, the bill was amended and 
passed by the Senate. The House voted to suspend the rules and 
agree to the Senate amendments by voice vote on July 25. The 
President signed H.R. 4472 on July 27, and it became Public Law 
109-248.

H.R. 4703, ``To provide meaningful civil remedies for victims of the 
        sexual exploitation of children''

    Summary.--Congressman Phil Gingrey (R-GA) introduced H.R. 
4703 on February 7, 2006. H.R. 4703 amends section 2255 of 
Title 18, providing a Federal private right of action to 
victims of Federal sexual offenses, to clarify that victims of 
sexual offenses may sue under this section either as a minor or 
as an adult. The bill increases from $50,000 to $150,000 the 
minimum amount of damages a victim shall be deemed to have 
sustained.
    Legislative History.--H.R. 4703 was included in H.R. 4472, 
the ``Adam Walsh Child Protection and Safety Act of 2006'', 
which passed the House on July 25, 2006, and became Public Law 
109-248 on July 27, 2006.

H.R. 4777, the ``Internet Gambling Prohibition Act''

    Summary.--Congressman Bob Goodlatte (R-VA) introduced H.R. 
4777 on February 16, 2006. H.R. 4777 clarifies the Wire Act to 
prohibit not only sports betting, but traditional gambling, 
such as online poker, blackjack and roulette. The bill also 
updates the Wire Act, passed in 1961, to cover more Internet 
technologies, such as wireless infrastructures that 
increasingly make up the Internet. Finally, the bill outlaws 
the transmission of electronic funds to pay for gambling bets; 
grants Federal, state and local law enforcement the ability to 
seek injunctions to prevent the transmission of those funds; 
and increases the penalties for all violations of the Wire Act 
from a maximum of two years to a maximum of five years.
    Gambling on the Internet has increasingly become an 
extremely lucrative business. The explosive growth of this 
industry, has seen an increase both in gambling websites 
available, and in industry revenues. Internet gambling is now 
estimated to be a $12 billion industry, with approximately $6 
billion coming from bettors based in the U.S. It has been 
reported that there are as many as 2,300 gambling sites.
    Legislative History.--On April 5, 2006, the Subcommittee on 
Crime, Terrorism and Homeland Security conducted a legislative 
hearing on H.R. 4777. Testifying before the Subcommittee were 
(1) the Honorable Bob Goodlatte, 6th Congressional District of 
Virginia, Member of Congress; (2) Mr. Bruce Ohr, Chief, 
Organized Crime and Racketeering Section, DOJ; (3) Mr. John 
Kindt, Professor, University of Illinois; (4) Mr. Sam 
Vallandingham, Vice President, the First State Bank, West 
Virginia. The Subcommittee, via voice vote, reported the bill 
favorably to the full committee on May 3, 2006. On Thursday, 
May 25, 2006, the Committee on the Judiciary conducted a markup 
on H.R. 4777. Thereafter, H.R. 4777 was merged with and into 
H.R. 4411 the Unlawful Internet Gambling Enforcement Act of 
2006, introduced by Congressman Jim Leach (R-IA). On July 11, 
2006, the merged version of H.R. 4411 which contained the 
portions of H.R. 4777 as reported by the Committee on the 
Judiciary, passed the House 317-93.

H.R. 4894, the ``Schools Safely Acquiring Faculty Excellence (SAFE) Act 
        of 2006''

    Summary.--Congressman Jon Porter (R-NV) introduced H.R. 
4894 on March 7, 2006. H.R. 4894 directs the Attorney General 
to conduct fingerprint-based background checks through the 
national crime information databases at the request of schools 
or educational agencies for employees, prospective employees, 
and volunteers who interact with children.
    Despite improvements in hiring practices of prospective 
teachers, including widespread use of background checks, people 
with criminal histories still fall through the cracks. Today, 
all states require some form of background check for school 
employees. However, the type of background check varies from 
state to state and even among school districts. Some states 
require only a state police check while others require both a 
state and an FBI check. Who is checked and how often also 
varies.
    In 1998, Congress adopted the National Crime Prevention and 
Privacy Compact Act establishing an infrastructure by which 
states can exchange criminal records for non-criminal justice 
purposes such as background checks of school employees. 
However, to date, only twenty-five states and the FBI have 
ratified the Compact.
    The FBI's Integrated Automated Fingerprint Identification 
System (IAFIS) is a national fingerprint and criminal history 
system. The Interstate Identification Index (III) segment of 
IAFIS is the national system designed to provide automated 
criminal history information to participating states. Forty 
states currently participate in the III program.
    Two flaws persist with current background check systems. 
First, not all state criminal records appear under these 
systems and second, the current process is cumbersome and does 
not provide a timely response. Use of the current systems is 
particularly cumbersome in fast-growing school districts that 
are under tremendous pressure to quickly fill additional 
teaching positions. H.R. 4894 provides states direct access to 
federal databases for background checks of current and 
prospective school employees and volunteers.
    The Schools SAFE Act included in H.R. 4472 additionally 
authorizes the Attorney General to conduct fingerprint-based 
background checks upon request from state child welfare 
agencies for prospective foster or adoptive parents or for 
purposes of investigating incidents of abuse or neglect of a 
minor.
    Legislative History.--On May 24, 2006, the Judiciary 
Committee held a legislative markup, reporting the bill 
favorably as amended by voice vote (H. Rept. 109-497). H.R. 
4894 passed the House on June 13, 2006, and was included in 
H.R. 4472, the ``Adam Walsh Child Protection and Safety Act of 
2006'', which passed the House on July 25, 2006, and became 
Public Law 109-248 on July 27, 2006.

H.R. 5005 the ``Firearms Corrections and Improvements Act''

    Summary.--Congressman Lamar Smith (R-TX) introduced H.R. 
5005 on March 16, 2006. H.R. 5005 updates and clarifies various 
sections of the Gun Control Act, 18. U.S.C. Ch. 44. The bill 
has generally received wide support from the BATFE; the 
Department of Justice, the Fraternal Order of Police, and the 
National Rifle Association. For the most part, H.R. 5005 
implements a number of low-controversy ``house-keeping'' 
changes to the Gun Control Act. However, mayors from the 
nation's large cities voiced opposition to Sections 7 regarding 
the dual reporting requirement of multiple handgun sales, and 
Section 9 regarding trace data. Proponents of Sections 7 and 9 
argue that those sections are necessary to protect the right to 
privacy of individual gun purchasers, Federal firearm 
licensees, and law enforcement personnel.
    Legislative History.--On March 28, 2006, the Subcommittee 
on Crime, Terrorism and Homeland Security conducted a 
legislative hearing on H.R. 5005. Testifying before the 
Subcommittee were (1) Ms. Audrey Stucko, Deputy Assistant 
Director, Enforcement Programs and Services, Bureau of Alcohol, 
Tobacco, Firearms and Explosives; (2) Mr. Richard Gardiner, 
Attorney-at-Law, Fairfax, VA; and (3) the Honorable Michael 
Bloomberg, Mayor, New York City. The Subcommittee, via voice 
vote, reported the bill favorably to the full committee on May 
18, 2006. On Wednesday, September 6, 2006, the Committee on the 
Judiciary conducted a markup on H.R. 5005.

H.R. 5040, the ``Death Penalty Reform Act of 2006''

    Summary.--Congressman Louie Gohmert (R-TX) introduced the 
Death Penalty Reform Act of 2006, which amends the Federal 
criminal code to modify substantive law and procedures relating 
to the death penalty, on March 29, 2006.
    Capital punishment continues to spark significant debate 
across the country. The Committee has made significant efforts 
to ensure that capital punishment is implemented fairly against 
the truly guilty. We now have in place greater safeguards and 
technologies to ensure accuracy at the most important phase of 
a prosecution--the trial. In addition to public safety and just 
punishment of the guilty, our death penalty system vindicates 
the rights of victims and their families--a group whose 
interests are often minimized or ignored.
    The Death Penalty Reform Act further improves notice 
requirements, improves procedures for presenting evidence of 
mental retardation or mitigating factors, improves juror 
selection and retention, clarifies assignment of capital 
counsel, and provides uniformity in implementing death 
sentences. It adds certain crimes that result in death, 
including obstruction of justice, as aggravating factors in 
death penalty deliberations, and defines ``mentally retarded'' 
for death penalty purposes. Additionally, H.R. 5040 repeals the 
prohibition against executing a person who is mentally 
retarded, and grants the government an unlimited right to 
rehearings of a finding of mental incapacity in death penalty 
cases.
    Legislative History.--H.R. 5040 was referred to the 
Committee on the Judiciary then to the Subcommittee on Crime, 
Terrorism, and Homeland Security on the same day--March 29, 
2006. On March 30, Subcommittee hearings were held at which the 
following individuals testified: Ms. Margaret P. Griffey, Chief 
of the Capital Case Unit's Criminal Division at the U.S. 
Department of Justice; Mr. Robert Steinbuch, Professor of Law 
at the University of Arkansas; Mr. Kent Scheidegger, Legal 
Director and General Counsel at the Criminal Justice Legal 
Foundation; and Mr. David Bruck, Director of the Virginia 
Capital Case Clearinghouse and Clinical Professor of Law at 
Washington & Lee School of Law. No further action was taken 
during the 109th Congress.

H.R. 5092, the ``The Bureau of Alcohol, Tobacco, Firearms, and 
        Explosives (BATFE) Modernization and Reform Act of 2006''

    Summary.--Congressman Howard Coble (R-NC) and Robert Scott 
(D-VA) introduced H.R. 5092 on April 5, 2006. H.R. 5092 was 
introduced as a bipartisan attempt to address issues raised 
during three oversight hearings conducted at the beginning of 
2006, by the Subcommittee on Crime, Terrorism and Homeland 
Security, regarding the investigation and enforcement 
activities of the BATFE. The bill addresses a number of issues 
relating to the BATFE's enforcement authority, including 
authorization of civil penalties (e.g. fines and suspensions); 
creation of independent administrative law judges to hear 
enforcement cases; definition of serious and non-serious 
violations; clarification of requisite intent for civil 
violations; the establishment of investigative guidelines; 
Department of Justice, Inspector Generals' investigation of the 
BATFE gun show enforcement; limitation on BATFE authorities; 
and clarification of several enforcement regulations.
    The oversight hearings held by the Subcommittee raised 
serious concerns over the BATFE's: Allocation of resources; 
investigation techniques, including questionable stops, 
searches and seizures of firearm purchasers and Federal firearm 
licensees (``FFL''); and the lack of consistent law enforcement 
policies and procedures among the BATFE's field offices and 
central management. The hearings revealed the need for: (1) A 
graduated penalty system in Title 18 U.S.C. Section 923, which 
includes civil penalties, based on the degree of risk of harm 
that the FFL's violation poses to others; (2) establishing a 
system of neutral administrative law judges to review the 
licensing decisions of the BATFE; (3) establishing 
investigative guidelines similar to those of the Federal Bureau 
of Investigation and Drug Enforcement Agency; and (4) other 
modifications to the Federal laws to ensure that American 
citizens receive due process of the law.
    Legislative History.--The bill was introduced by 
Representative Coble and Representative Scott on April 5, 2006, 
and has over 110 cosponsors. Earlier this year, the 
Subcommittee on Crime, Terrorism and Homeland Security 
conducted three oversight hearings regarding the BATFE's 
investigation and enforcement activities; this bill addresses 
concerns raised at those hearings. The Subcommittee, via voice 
vote, reported the bill favorably to the full committee on May 
3, 2006. On Wednesday, September 6, 2006, the Committee on the 
Judiciary conducted a markup on H.R. 5092, and reported the 
bill favorably.

H.R. 5219 the ``Judicial Transparency and Ethics Enhancement Act of 
        2006''

    Summary.--Chairman F. James Sensenbrenner, Jr. (R-WI) 
introduced H.R. 5219 on April 27, 2006. H.R. 5219 provides for 
the detection and prevention of inappropriate conduct in the 
Federal judiciary through establishment of the Office of 
Inspector General for the Judicial Branch. The Inspector 
General is appointed by the Chief Justice of the United States 
to conduct investigations of matters relating to the Judicial 
Branch (other than the Supreme Court) including possible 
misconduct of judges and proceedings under Chapter 16 of Title 
28, United States Code, that may require oversight or other 
action by Congress; to conduct and supervise audits and 
investigations; to prevent and detect waste, fraud and abuse; 
and to recommend changes in laws or regulations governing the 
Judicial Branch.
    The powers of the Inspector General are: (1) To make 
investigations and reports; (2) to obtain information or 
assistance from any Federal, State or local agency, or other 
entity, or unit thereof, including all information kept in the 
course of business by the Judicial Conference of the United 
States, the judicial council of circuits, the administrative 
office of United States courts, and the United States 
Sentencing Commission; (3) to require, by subpoena or 
otherwise, the attendance for the taking of testimony of any 
witnesses and the production of any documents, which shall be 
enforceable by civil action; (4) to administer or to take an 
oath or affirmation from any person; (5) to employ officers and 
employees; (6) to obtain all necessary services; and (7) to 
enter into contracts or other arrangements to obtain services 
as needed.
    The Inspector General is required: (1) to provide the Chief 
Justice and Congress with an annual report on the Inspector 
General's operations; (2) to make prompt reports to the Chief 
Justice and to Congress on matters which may require further 
action; and (3) to refer to the Department of Justice any 
matter that may constitute a criminal violation.
    Any employee in the Judicial Branch who provides 
information to the Inspector General would receive 
whistleblower protection to protect against retaliation or 
firing.
    Legislative History.--On June 29, 2006, the Subcommittee on 
Crime, Terrorism, and Homeland Security held a legislative 
hearing on H.R. 5219. Witnesses who testified at the hearing 
were the Honorable Charles Grassley, Republican Senator from 
Iowa; Professor Ronald D. Rotunda, George Mason University 
School of Law; Professor Arthur Hellman, University of 
Pittsburgh School of Law; and Professor Charles Geyh, Indiana 
University School of Law at Bloomington. On September 27, 2006, 
the House Judiciary Committee favorably reported the bill, H.R. 
5219, by a vote of 20-6.

H.R. 5825, the ``Electronic Surveillance Modernization Act''

    Summary.--Representative Heather Wilson, Chairman 
Sensenbrenner, and Select Committee on Intelligence Chairman 
Hoekstra, and others introduced H.R. 5825, the ``Electronic 
Surveillance Modernization Act,'' on July 18, 2006. This bill 
would strengthen oversight of the executive branch and enhance 
accountability by requiring the Government to provide more 
information to the courts and to each Member of the House and 
Senate Intelligence Committees; would modernize and simplify 
the process for getting a FISA warrant and clarify its scope 
and applicability; would update FISA to account for technology 
changes in 21st Century communications; would clarify the 
authority of our intelligence agencies in the event of an 
attack on the United States; and would clarify the President's 
authority and the Congress' oversight of surveillance programs. 
The testimony presented at two hearings before the Subcommittee 
on Crime, Terrorism, and Homeland Security, demonstrated that 
the FISA process must be streamlined and technology-neutral.
    Legislative History.--The Committee on the Judiciary 
Subcommittee on Crime, Terrorism, and Homeland Security held 
two hearings on H.R. 5825 on the 6th and 12th of September 
2006. The witnesses who testified at the first hearing on the 
6th were: Mr. Steve Bradbury, Acting Assistant Attorney 
General, Office of Legal Counsel, U.S. Department of Justice; 
Mr. Robert L. Deitz, General Counsel, National Security Agency; 
Mr. Robert Alt, Fellow, Legal and International Affairs, The 
John M. Ashbrook Center for Public Affairs, Ashland University; 
and Mr. Jim Dempsey, Policy Director, Center for Democracy and 
Technology. At the second hearing on the 12th, the following 
individuals testified: Mr. John Eisenberg, Deputy Assistant 
Attorney General Office of Legal Counsel, U.S. Department of 
Justice, Mr. Vito Potenza, Acting General Counsel National 
Security Agency; Ms. Kate Martin, Director, Center for National 
Security Studies; and Mr. Bruce Fein, Principal, Bruce Fein and 
Associates. On September 20, 2006, the Committee met in open 
session and ordered favorably reported the bill, H.R. 5825, 
with an amendment, by roll call vote with 20 ayes and 16 nays, 
a quorum being present. The bill was reported to the House on 
November 29, 2001 (H. Rept. 109-630, Part II). The House passed 
the bill on September 28, 2006, by a recorded vote (Roll No. 
502) of 232 yeas to 191 nays. No further action was taken on 
the bill, H.R. 3209, during the 109th Congress.

H.R. 5304, the ``Preventing Harassment through Outbound Number 
        Enforcement Act, PHONE Act''

    Summary.--Congressman Tim Murphy (R-PA) introduced H.R. 
5304 on May 4, 2006. H.R. 5304 creates a new Federal criminal 
code which prohibits a person from engaging in the practice 
known as ``spoofing,'' which is the use of incorrect, fake or 
fraudulent caller identification ``caller ID'' to hide their 
identity in order to facilitate a fraudulent telephone call to 
the recipient. Caller ID spoofing involves masking one's own 
phone number and identifying information with another phone 
number and identifying information. Call recipients divulge 
personal and private information to the caller, under the 
mistaken belief that the caller is a legitimate caller (e.g a 
bank, credit card company or court of law). The bill imposes a 
fine and or a prison term of up to five years for violations. 
However, the legislation does not affect legally available 
blocking of caller ID technology or lawfully authorized 
activities of law enforcement or intelligence agencies. This 
legislation is intended to help protect consumers from 
harassment, identity theft, and other crimes.
    Legislative History.--On Wednesday, November 15, 2006, the 
Subcommittee on Crime, Terrorism, and Homeland Security held a 
legislative hearing on H.R. 5304. The hearing focused on the 
need to broaden the scope of current law to deter telephone 
fraud and to better protect consumers' and their personally 
identifiable data from fraudulent telephone use. Further, the 
hearing focused on the need to increase the tools available to 
the Department of Justice to prosecute and protect against 
criminals that use fake telephone and caller identification to 
commit crime. Testifying before the Subcommittee were the 
Honorable Timothy Murphy, Representative, Pennsylvania's 18th 
Congressional District; Mr. Barry Sabin, Deputy Assistant 
Attorney General, Criminal Division, United States Department 
of Justice; Mr. James Martin, President and Founder, 60-Plus 
Association; and Mr. Phil Kiko, Chief of Staff and General 
Counsel, U.S. House of Representatives, Committee on the 
Judiciary. On December 8, 2006, the bill was considered under 
suspended rules and passed by voice vote on December 9, 2006.

H.R. 5535, the ``Prevention of Civil RICO Abuse Act of 2006''

    Summary.--Chairman F. James Sensenbrenner, Jr. (R-WI) 
introduced H.R. 5535 on June 6, 2006. H.R. 5535 clarifies that 
a foreign government may not sue under the civil remedy of the 
Racketeer-Influenced and Corrupt Organizations (RICO) statute.
    Section 1964 of Title 18 provides civil remedies for 
violations of the criminal provisions of RICO. Subsection (a) 
provides for equitable relief while subsection (c) provides for 
treble damages. The House Judiciary Committee's Report that 
accompanied adoption of the civil remedies provision stated 
that it ``authorizes civil treble damage suits on the part of 
private parties who are injured.'' Courts have interpreted the 
civil RICO statute to bar the U.S. government as a plaintiff in 
treble damage suits.
    However, in recent years, foreign governments have begun 
seeking civil RICO damages against American companies in U.S. 
courts despite the lack of evidence that Congress ever intended 
to provide such standing to foreign governments. The first 
lawsuit came in 2000. Since then, over 30 foreign governments, 
including Canada, Columbia, Equador, and ten European Community 
countries, have filed civil RICO suits seeking billions of 
dollars in taxes and tariffs alleging loss from smuggled goods. 
Most of these cases have been dismissed pursuant to the 
``revenue rule,'' which prohibits a court from enforcing a 
foreign sovereign's revenue statutes.
    In one case currently pending before the Eastern District 
of New York, the Columbian government and 15 Columbian states 
are attempting to circumvent the revenue rule by characterizing 
their damages as ``commercial'' losses instead of tax revenue. 
American companies are already expending ample time and 
financial resources defending these suits. Should the Columbian 
case survive dismissal, it will dramatically increase the costs 
to American companies and consumers.
    Legislative History.--On July 19, 2006, the Judiciary 
Committee held a legislative markup, reporting the bill 
favorably (as amended) by a recorded vote of 17-8. No committee 
report was filed and no further action was taken in the 109th 
Congress.

H.R. 5673, the ``Criminal Restitution Improvement Act of 2006''

    Summary.--Congressman Steve Chabot (R-OH) introduced H.R. 
5673 on June 22, 2006. H.R. 5673 makes restitution mandatory 
for all Federal crimes and improves the procedures for 
collecting Federal restitution.
    Crime victims suffer tremendous loss at the hands of their 
assailants. In addition to physical and emotional trauma, 
victims suffer financial loss, including medical expenses, lost 
earnings, and property damage. Annual losses for crime victims 
have been estimated at $105 billion.
    Restitution is intended to hold offenders accountable to 
their victims for their conduct while attempting to make the 
victims whole again by compensating their financial losses. At 
the Federal level, however, as much as 87% of criminal debt 
(restitution and fines) is uncollected each year. According to 
a 2001 GAO study, the amount of outstanding criminal debt has 
ballooned from $269 million to over $13 billion.
    Restitution is currently collected by the Financial 
Litigation Units (FLUs) of the United States Attorneys Offices. 
The GAO identified four factors impacting debt collection that 
fall outside the FLU's control: (1) the nature of debt 
collection from incarcerated offenders, deported offenders, or 
offenders with minimal earning capacity; (2) the statutory 
requirement that the court assess restitution regardless of the 
offender's ability to pay; (3) limitations on collection due to 
court-ordered payment schedules; and (4) state laws that limit 
the types of property that can be seized or amount of wages 
that can be garnished.
    GAO identified two factors within the FLU's control that, 
if remedied, would improve criminal debt collection: (1) an 
inadequate collection process; and (2) a lack of coordination 
between the entities involved in restitution (the court, the 
FLU, the probation officer, the prosecuting attorney).
    H.R. 5673 makes restitution mandatory for all Federal 
offenses in which an identifiable victim suffers pecuniary 
loss. The bill also makes several changes to the current 
restitution statute to improve collection of outstanding 
restitution, including (1) directing the court to order 
restitution due in full immediately, (2) making installment 
payments discretionary rather than mandatory, (3) authorizing 
the Attorney General to collect restitution above the 
installment payment amount, (4) prohibiting early termination 
from probation or supervised release if restitution is 
outstanding, and (5) authorizing extension of probation or 
supervised release if restitution is outstanding.
    Legislative History.--On June 13, 2006, the Subcommittee on 
Crime, Terrorism, and Homeland Security held a legislative 
hearing on H.R. 5673. Witnesses who testified at the hearing 
were Professor Doug Beloof, Director, National Crime Victim Law 
Institute, Lewis and Clark Law School; Mr. Dan Levey, 
President, Parents of Murdered Children, Inc.; and Mr. Jim 
Felman, Partner, Kynes, Markman, and Felman, P.A., and Co-
Chair, Committee on Corrections and Sentencing, American Bar 
Association.

H.R. 5749 the ``Internet Stopping Adults Facilitating the Exploitation 
        of Today's Youth Act (SAFETY) of 2006''

    Summary.--Congressman Mark Foley (R-FL) introduced H.R. 
5749 on July 10, 2006. H.R. 5749 provides additional 
prosecution tools to combat Internet child pornography and 
child exploitation. In recent years, Internet child pornography 
has evolved from a need-driven industry in which pornographic 
images are shared amongst pedophiles to a commercial enterprise 
worth billions of dollars annually. Unethical business people 
are capitalizing off of the Internet's virtual marketplace by 
establishing child pornography websites where the user pays a 
monthly fee to view and download child pornography images.
    These child porn ``subscriptions'' can be purchased using a 
major credit card or through an emerging tool known as a 
virtual payment system. Unlike credit card companies, which 
require the merchant to provide accurate personal information 
such as name, address, and social security number, virtual 
payments systems are essentially anonymous. Subscribers can 
provide fictitious personal information and no credit card or 
social security number is required, making them virtually 
untraceable. The key to combating the commercial child 
pornography industry is to cut it off at its source--money.
    Legislative History.--H.R. 5749 was referred to the 
Judiciary Committee on July 10, 2006. Portions of the bill were 
included in H.R. 4472, the Adam Walsh Child Protection and 
Safety Act of 2006, which passed the House on July 25, 2006, 
and became Public Law 109-248 on July 27, 2006.

H.R. 5939, the ``Criminal Terrorism Improvements Act of 2006''

    Summary.--Congressman Daniel E. Lungren (R-CA) introduced 
H.R. 5939 on July 27, 2006. H.R. 5939 provides increased 
penalties, including up to life in prison or death, for 
terrorist offenses that result in the death of another person. 
H.R. 5939 also provides that any person convicted of a 
``Federal crime of terrorism'' is ineligible to receive any 
benefits from the Federal Government for any term of years or 
for life.
    Since September 11, 2001, Federal and State officials have 
worked diligently to prevent further terrorist attacks on U.S. 
soil. Despite some changes to the law to increase penalties 
after the deadly terrorist attacks, a jury still cannot 
consider a sentence of death or life imprisonment for 
terrorists in many cases even when the attack resulted in 
death.
    Existing law does not consistently provide adequate maximum 
penalties for fatal acts of terrorism. For example, in a case 
in which a terrorist caused massive loss of life by sabotaging 
a national defense installation, sabotaging a nuclear facility, 
or destroying an energy facility, there would be no possibility 
of imposing the death penalty under the statutes defining these 
offenses because they contain no death penalty authorizations. 
In contrast, dozens of other Federal violent crime provisions 
authorize up to life imprisonment or the death penalty in cases 
where victims are killed. There are also cross-cutting 
provisions which authorize these sanctions for specified 
classes of offenses whenever death results, such as 18 U.S.C. 
Sec. 2245, which provides that a person who, in the course of a 
sexual abuse offense, ``engages in conduct that results in the 
death of a person, shall be punished by death or imprisoned for 
any term of years or for life.''
    Current law allows Federal courts to deny Federal benefits 
to persons who have been convicted of drug-trafficking or drug-
possession crimes. 21 U.S.C. Sec. 862. As a result, these 
convicts can be prohibited, for periods of up to life, from 
receiving grants, contracts, loans, professional licenses, or 
commercial licenses that are provided by a Federal agency or 
out of appropriated funds. But despite the fact that terrorism 
is at least as dangerous to the our national security as drug 
offenses, presently there is no legal authority to deny Federal 
benefits to persons who have been convicted of terrorism 
crimes.
    Legislative History.--The bill was referred to the House 
Judiciary Committee on July 27, 2006. No further action has 
occurred.

H.R. 6254, the ``Sentencing Fairness and Equity Restoration Act of 
        2006''

    Summary.--Chairman F. James Sensenbrenner, Jr. (R-WI) 
introduced H.R. 6254 on September 29, 2006. H.R. 6254 proposes 
a legislative fix to the Supreme Court's decision in United 
States v. Booker, 543 U.S. 220 (2005), which invalidated the 
mandatory sentencing requirement of the Sentencing Guidelines 
(18 U.S.C. section 3553(b)(1)), and struck down the de novo 
standard for appellate review of any downward departures in 18 
U.S.C. Section 3742(e), which was enacted as part of the 
PROTECT Act in 2003.
    The Booker court ruled that the Sixth Amendment applies to 
the Federal Sentencing Guidelines and noted that the Sixth 
Amendment implications hinged on the mandatory nature of the 
Guidelines, which are dependent on judicial fact-finding. Id. 
at 232. In a separate opinion, the Court excised the provision 
in section 3553(b) that instructed the court to ``impose a 
sentence of the kind, and within the range'' provided by the 
Guidelines.
    H.R. 6254 replaces the mandatory provision excised by the 
Court with a requirement that the court adhere only to the 
minimum of the guideline range established by the Sentencing 
Commission. This requirement, however, is not mandatory because 
the court may still depart from the minimum of the range in 
certain instances. The bill also reaffirms Congress' intent in 
the Sentencing Reform Act of 1984 that the maximum sentence a 
judge may impose is the statutory maximum rather than the 
Guideline maximum. The Booker Court reasoned that because 
section 3553(b)(1) required courts to adhere to the sentencing 
guidelines, the ``maximum'' sentence authorized by law was, in 
fact, the Guideline maximum and not the statutory maximum. 
Amended section 3553(b)(1) removes the mandatory requirement 
from the sentencing statute. Thus, the court is not bound by 
the Guideline maximum and may impose a sentence up to the 
maximum authorized by statute.
    H.R. 6254 also amends section 3742(e) of Title 18 to re-
establish the de novo appellate review standard for downward 
departures. In Booker, the Court excised the de novo appellate 
review standard, which was enacted as part of the PROTECT Act, 
based upon its rationale that this section ``contains critical 
cross-references to the (now excised) Sec. 3553(b)(1) and 
consequently must be severed and excised for similar reasons.'' 
Id. at 247. The Court, however, provides no nexus between the 
de novo appellate standard of review and the Sixth Amendment 
right to a jury for sentencing. Moreover, having excised the 
mandatory sentencing provision in Sec. 3553(b)(1), the cross-
reference to that section in Sec. 3742(e) carries no Sixth 
Amendment implications. Section 3742(e) merely outlines the 
criteria appellate courts must use to review sentences. The 
bill reasserts Congress' intent to reign in the increasing rate 
of reduced sentences, particularly for sexual offenses, 
expressed in the PROTECT Act. Pursuant to the bill, the 
appellate courts will continue to review sentences below the 
minimum of the range de novo while maintaining Booker's 
reasonableness standard for all other sentencing appeals.
    A significant result of the Booker decision is the spike in 
downward departures for substantial assistance imposed by the 
courts in the absence of a government motion. Substantial 
assistance motions are filed in instances where the defendant 
has provided the government with information relating to 
another investigation or prosecution. In reviewing this 
increase in sua sponte departures, the committee has learned 
that the government's standards for these motions vary from 
district to district, creating the potential for disparate 
treatment of similarly situated defendants.
    H.R. 6254, therefore, directs the Attorney General to 
implement a uniform policy for departure motions for 
substantial assistance, including the definition of substantial 
assistance in the investigation, the process for determining 
whether departure is warranted, and the criteria for 
determining the extent of departure. The bill instructs the 
Attorney General to report the policy to Congress within 180 
days of enactment of this Act.
    Finally, the bill amends section 994(w) of Title 28, which 
governs the reporting requirements of the federal district 
courts to the U.S. Sentencing Commission. This amendment simply 
clarifies that the reporting required by this section is to be 
completed by the judicial branch and may not be delegated to 
the executive branch.
    Legislative History.--The Subcommittee on Crime, Terrorism, 
and Homeland Security held two oversight hearings on the Booker 
decision on February 10, 2005, and March 16, 2006.

                          Oversight Activities


List of oversight hearings

    Implications of the Booker/Fanfan Decision for the Federal 
Sentencing Guidelines, February 10, 2005 (Serial No. 109-1).
    Department of Homeland Security to Examine the Security of 
the Nation's Seaports and the Cargo Entering Those Ports, March 
15, 2005 (Serial No. 109-38).
    Responding to Organized Crimes Against Manufacturers and 
Retailers, March 17, 2005 (Serial No. 109-36).
    Department of Justice to Examine the Use of Section 218 of 
the USA PATRIOT Act, April 14, 2005.
    Implementation of the USA PATRIOT Act: Effect of Sections 
203(b) and (d) on Information Sharing, April 19, 2005 (Serial 
No. 109-15).
    Implementation of the USA PATRIOT Act: Sections of the Act 
that Address Crime, Terrorism, and the Age of Technology, 
Sections 209, 217, and 220, April 21, 2005 (Serial No. 109-18).
    Implementation of the USA PATRIOT Act: Sections of the Act 
that Address the Foreign Intelligence Surveillance Act (FISA). 
(Part I), April 26, 2005 (Serial No. 109-17).
    Implementation of the USA PATRIOT Act: Sections of the Act 
that Address the Foreign Intelligence Surveillance Act (FISA). 
(Part II), April 28, 2005 (Serial No. 109-17).
    Implementation of the USA PATRIOT Act: Section 218, Foreign 
Intelligence Information (``The Wall''), April 28, 2005 (Serial 
No. 109-16).
    Implementation of the USA PATRIOT Act: Sections 201, 202, 
223 of the Act that Address Criminal Wiretaps, and Section 213 
of the Act that Addresses Delayed Notice, May 3, 2005 (Serial 
No. 109-20).
    Implementation of the USA PATRIOT Act: Section 212--
Emergency Disclosure of Electronic Communications to Protect 
Life and Limb, May 5, 2005 (Serial No. 109-14).
    Implementation of the USA PATRIOT Act: Prohibition of 
Material Support Under Sections 805 of the USA PATRIOT Act and 
6603 of the Intelligence Reform and Terrorism Prevention Act of 
2004, May 10, 2005 (Serial No. 109-13).
    Implementation of the USA PATRIOT Act: Sections 505 and 
804, May 26, 2005 (Serial No. 109-19).
    Protecting our Nation's Children from Sexual Predators and 
Violent Criminals: What Needs to be Done? June 9, 2005 (Serial 
No. 109-31).
    Offender Re-entry: What is Needed to Provide Criminal 
Offenders With a Real Second Chance? November 3, 2005 (Serial 
No.109-65).
    Weak Bilateral Law Enforcement Presence at the U.S.-Mexico 
Border: Territorial Integrity and Safety Issues for American 
Citizens, November 17, 2005 (Serial No. 109-90). (Held jointly 
with the Subcommittee on Immigration, Border Security and 
Claims).
    Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) 
Part I: Gun Show Enforcement, February 15, 2006 (Serial No. 
109-123)
    Victims and the Criminal Justice System: How to Protect, 
Compensate, and Vindicate the Interests of Victims, February 
16, 2006, (Serial No.109-87).
    Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) 
Part II: Gun Show Enforcement, February 28, 2006 (Serial No. 
109-123).
    Outgunned and Outmanned: Local Law Enforcement Confronts 
Violence Along the Southern Border, March 2, 2006 (Serial No. 
109-85). (Held jointly with the Subcommittee on Immigration, 
Border Security and Claims).
    White Collar Enforcement: Attorney-Client Privilege and 
Corporate Waivers, March 7, 2006 (Serial No. 109-112).
    United States v. Booker: One Year Later--Chaos or Status 
Quo? March 16, 2006, (Serial No. 109-121).
    The Bureau of Alcohol, Tobacco, Firearms, and Explosives 
(BATFE): Reforming Licensing and Enforcement Authorities, March 
28, 2006 (Serial No. 109-121).
    The Need for European Assistance to Columbia in the Fight 
Against Illicit Drugs, September 21, 2006, (Serial No. 109-
148).

Oversight issues

Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) Facilities 
        Oversight

    On August 17, 2005, committee staff toured ATF's new 
laboratory in Ammendale, Maryland. The tour included the 
explosives and arson labs, and a live burn demonstration inside 
one of the facility's burn cells. Following the tour of the 
laboratory, committee staff traveled to the Federal Law 
Enforcement Training Center in Glynco, GA to see how ATF trains 
agents.

Federal Air Marshals service

    On September 28, 2004, the Committee sent a letter to 
Thomas D. Quinn, Director of the Federal Air Marshals Service 
(FAMS) regarding alleged security gaps in air travel. In their 
letter, they asked the FAMS to respond to a number of detailed 
questions by October 15, 2004. On October 20, 2004, Director 
Quinn responded with 29 pages of information and several 
classified secret documents, which were placed in a separate 
folder.
    Committee staff reviewed the files and began to 
independently interview rank-and-file Federal Air Marshals from 
various FAMS field offices across the country. Over 30 Federal 
Air Marshals from the Washington, Boston, Chicago, Atlanta, Los 
Angeles, Las Vegas, Houston, and Dallas field offices were 
interviewed in person, via telephone, or by email 
correspondence. Every Federal Air Marshal interviewed indicated 
that there are ways in which the service needs improving. An 
overwhelming majority of the interviewed Air Marshals stated 
that most concerns centered around threats created by the 
Service's own policies to preserving anonymity and safety. Most 
also indicated a reluctance to approach supervisors with these 
concerns for fear of retaliation that included being given 
difficult scheduling assignments and being required to wash 
FAMS vehicles and paint office walls. Many of those interviewed 
said that they initially tried to voice their concerns to FAMS 
supervisors but were told that there would be no changes.
    Following the investigation the Committee released an 
investigative report on May 25, 2006 entitled Plane Clothes: 
Lack of Anonymity at the Federal Air Marshal Service 
Compromises Aviation and National Security. In the months 
following the release of the report, committee staff worked 
closely with FAMS management to ensure that policy 
modifications would be made to better ensure the anonymity of 
FAMS. On August 24, 2006, new policy modifications were 
announced by FAMS management to help achieve this goal. 
Additionally, FAMS management made a commitment to review and 
modify any other policy that compromises anonymity.

United States Secret Service Mission oversight

    From July 5th through 9th, 2005, subcommittee staff went to 
Las Vegas, NV and San Francisco, CA to examine the United 
States Secret Service's investigative efforts to detect and 
prevent electronic crimes, including identity theft, network 
intrusions and denial-of-service attacks. The trip also 
highlighted the partnerships being utilized by the Secret 
Service with local law enforcement and the private sector in 
order to combat electronic crimes. Through these partnerships, 
the Secret Service has developed Electronic Crimes Task Forces 
across the nation.

Terrorist travel

    On August 10, 2005, subcommittee staff met with Kelly 
Moore, one of the five principal authors of 9/11 and Terrorist 
Travel, a Staff Report on the National Commission on Terrorist 
Attacks upon the United States. She briefed staff about 
terrorist mobility, border security, how the 9/11 hijackers 
penetrated our border security, how other terrorists in the 
past operated. Additionally, she shared her thoughts on what 
can be done to better detect terrorists when they travel.

The Federal Bureau of Investigation's Community Outreach Program

    Following the highly publicized incident of two NFL players 
getting intoxicated and into a fight at a Federal Bureau of 
Investigation's ``liaison day,'' subcommittee staff received a 
briefing on December 14, 2005 relating to the FBI's Community 
Outreach Program. The Community Outreach Program focuses its 
efforts on the community, the schools and the work-place. The 
FBI's goal is to assist our communities in the education of 
crimes, drugs, gangs, and violence. This program highly 
supports the investigative mission of the FBI by providing and 
developing programs that help reduce societal problems. Typical 
activities within this program include adopt-a-school programs, 
mentoring programs, and citizen's academies. During the 
briefing, the FBI indicated that it was a highly successful 
program and that the Chicago incident was an aberration and the 
incident was under internal investigation.

Transportation Security Administration

    Subcommittee staff requested and received a series of 
briefings relating to the mission of the Transportation 
Security Administration (TSA). These briefings included TSA's 
decision to amend its prohibited items list to allow small 
scissors and tools on board an airplane, the use of Federal Air 
Marshals to patrol and monitor train, bus, and ferry depots, 
and the implementation of the Screening of Passengers by 
Observation Techniques (``SPOT'') to screen possible terrorist 
and/or illegal behavior.

Drug Enforcement Administration's regulation enforcement against small 
        distributers

    Subcommittee staff met with the Drug Enforcement Agency 
(DEA) on August 15, 2006 to discuss DEA's regulation 
enforcement against small distributers. Specifically, the 
subcommittee was concerned that DEA was engaging in a pattern 
of heavy handed tactics against small and medium sized 
distributers of List 1 chemicals despite a lack of evidence of 
non-compliance with DEA regulations. The subcommittee was also 
concerned that DEA was lacking an expedient timetable for 
publishing proposed regulations to implement the Combat Meth 
Act.

COPS program

    On May 10, 2003, the Committee on the Judiciary requested 
that the General Accounting Office (GAO) do an analysis of data 
provided to the Committee by the Department of Justice 
regarding the Community Oriented Policing Services (COPS) 
program. The data was provided to GAO on May 13, 2003. Due to 
time constraints, the GAO indicated that it could not provide 
an official analysis. Accordingly, in a letter to David M. 
Walker, Comptroller General of the United States, dated June 2, 
2003, the Chairman extended the deadline for the request to 
June 3, 2003 to ensure that an official document could be 
provided. Additionally, the Committee requested that GAO do an 
independent study of the COPS Program's effect on crime, 
including consideration of other Federal, state, and local 
programs or policies that are also focused on reducing crime.
    On November 11, 2003, staff from the GAO met with staff 
from the Judiciary Committee regarding this issue. In a letter 
dated January 8, 2004, the GAO notified the Committee that a 
separate design phase would be necessary to assess the 
relationship between COPS funding and crime while considering 
the effects of other such programs. The GAO estimated that the 
design phase would be completed by March 31, 2004.
    The Committee staff met with GAO over the next year to 
discuss the design phase and progress of the study of the 
effect of COPS. The Committee worked with the GAO to ensure 
that any study on the effects of COPS grants also took into 
consideration funds that were provided by other Federal grant 
programs to state and local governments to combat local crime.
    On June 3, 2005, the GAO provided the Committee with an 
interim report on the effect of the COPS program and other 
grant programs administered by the Department of Justice on 
local crime rates. The GAO completed its study on October 14, 
2005. The GAO concluded that ``while COPS expenditures led to 
increases in sworn police officers above levels that would have 
been expected without these expenditures and through the 
increases in sworn officers led to declines in crime, we 
conclude that COPS grants were not the major cause of the 
decline in crime from 1994 through 2001.''
    This information was utilized by the Committee in reforming 
the COPS grant program to allow flexibility in the use of funds 
by state and local governments to ensure funds were directed as 
needed.

Border kidnaping and violence

    On July 19, 2005, subcommittee staff received a briefing 
from the Federal Bureau and Investigation (FBI) and the 
Department of State on a rash of kidnaping incidents along the 
Texas/Mexico border, particularly in the region of Laredo, TX. 
The FBI and Department of State detailed the methods used by 
the government to adequately warn U.S. citizens about the 
violence, ensure that the violence does not spill onto U.S. 
territory, and effectively protect border integrity. On 
November 3, 2005, subcommittee staff met with representatives 
of the Immigration and Customs Enforcement (ICE) to discuss 
Operation Black Jack. Operation Black Jack is an interagency 
effort coordinated by ICE, launched to combat violence and drug 
smuggling activities in the Laredo region. These briefings lead 
to the ``Weak Bilateral Law Enforcement Presence at the U.S.-
Mexico Border: Territorial Integrity and Safety Issues for 
American Citizens'' hearing on November 17, 2005.

U.S. Marshals service

    From March 20-22, 2006, majority and minority staff visited 
the New York/New Jersey Regional Fugitive Task Force (RFTF). 
The NY/NJ RFTF is the ``flagship'' of the regional fugitive 
task force offices, and has been involved in many fugitive 
apprehension initiatives since its inception in May 2002. The 
NY/NJ RFTF also benefits from a fully-operational Regional 
Technical Operations Center in Morristown, NJ, which includes 
both electronic and air surveillance capabilities.
    Staff visited both the Manhattan headquarters and the 
Newark main office, met with the United States Marshals of the 
Southern District of New York, Eastern District of New York, 
and District of New Jersey. Staff also received briefings on 
many of the RFTF's significant initiatives and participated in 
a ride-along with teams of Federal, state, and local partners 
to witness the RFTF in action.
    Staff were provided with briefings on the operations of the 
USMS Financial Surveillance Unit, Operation Safe Surrender, the 
USMS Camden Initiative, and the Technical Operations Group. 
Staff were able to observe the equipment used for electronic 
surveillance and air surveillance.
    In addition to the fugitive apprehension ride-along in New 
York, Committee staff participated in fugitive apprehensions in 
the Washington, DC region. In August of 2006, staff also 
visited the U.S. Marshals Electronic Surveillance Unit to 
review technology and operations utilized in electronic 
surveillance for fugitive apprehensive.
    Finally, in May 2006, the subcommittee requested that the 
Marshals provide a briefing on Operation FALCON II. At the 
briefing, Judiciary staff reviewed technology and procedures 
used by the U.S. Marshals to track down fugitives.

The Federal Bureau of Investigation's use of confidential informants

    In February 2004, the House Committee on the Judiciary, 
pursuant to its oversight responsibilities, resumed a review of 
the Federal Bureau of Investigation's (FBI) Confidential 
Informant program initially begun by the House Committee on 
Government Reform, including its guidelines, policies, and 
practices.
    While the Government Reform investigation highlighted the 
problems in the Boston field office, the House Committee on the 
Judiciary delved into the FBI's development of confidential 
informants and whether or not the Boston field office was 
representative of general problems existing throughout the 
agency's confidential informant program. The Committee also 
examined the reforms promised to the Committee on Government 
Reform by Director Robert Mueller in November of 2003, as well 
as a review of compliance with the Confidential Informant 
Guidelines, revised in January 2001, that among other things, 
established the Confidential Informant Review Committee.
    To pursue its oversight investigation, the Committee 
conducted numerous meetings and sent correspondence to various 
State and Federal agencies, including the Department of 
Justice, inquiring into the FBI's use of confidential 
informants.
    In September 2005, the Department of Justice Office of the 
Inspector General (OIG) released a report entitled, ``The 
Federal Bureau of Investigation's Compliance with the Attorney 
General's Investigative Guidelines'' (the Report). The four 
areas reviewed concerning FBI's compliance with the Guidelines 
were: Confidential Informants; Undercover Operations; General 
Crimes, Racketeering Enterprise and Terrorism Enterprise 
Investigations; and Consensual Monitoring. In the Report, the 
OIG reviewed the FBI's implementation of the revised 
Investigative Guidelines with two main objectives: (1) to 
assess the FBI's compliance with the revised guidelines; and 
(2) to evaluate the procedures that the FBI employed to ensure 
that the revised Guidelines were properly implemented. The most 
significant problems cited were failures to comply with the 
Confidential Informant Guidelines. In fact, the OIG identified 
one or more Guidelines violations in 87 percent of the 
confidential informant files examined. The subcommittee worked 
with the Department of Justice and FBI to examine these 
shortcomings.

Federal Bureau of Investigation's relaxing of drug standards for 
        certain employees

    After it came to the subcommittee's attention that the 
Federal Bureau of Investigation (FBI) was considering relaxing 
its hiring standards regarding prior drug use for certain 
classifications of employees, a letter was sent on November 16, 
2005 to the FBI asking for clarification on this issue Because 
the FBI has a long history of investigating, prosecuting, and 
attempting to prevent drug crimes, the subcommittee was 
concerned that a new policy reflecting a more permissive 
standard relating to drug use drastically reduces the FBI's 
efforts in these areas. The FBI responded on January 6, 2005 
clarifying the policy shift.
                    SUBCOMMITTEE ON THE CONSTITUTION

   STEVE CHABOT, Ohio, Chairman

JERROLD NADLER, New York             TRENT FRANKS, Arizona
JOHN CONYERS, Jr., Michigan          WILLIAM L. JENKINS, Tennessee
ROBERT C. SCOTT, Virginia            SPENCER BACHUS, Alabama
MELVIN L. WATT, North Carolina       JOHN N. HOSTETTLER, Indiana
CHRIS VAN HOLLEN, Maryland           MARK GREEN, Wisconsin
                                     STEVE KING, Iowa
                                     TOM FEENEY, Florida

          Tabulation of subcommittee legislation and activity

Legislation referred to the Subcommittee.........................   139
Legislation on which hearings were held..........................     7
Legislation reported favorably to the full Committee.............     2
Legislation reported adversely to the full Committee.............     0
Legislation reported without recommendation to the full Committee     0
Legislation reported as original measure to the full Committee...     0
Legislation discharged from the Subcommittee.....................     7
Legislation pending before the full Committee....................     2
Legislation reported to the House................................     6
Legislation discharged from the Committee........................     0
Legislation pending in the House.................................     0
Legislation failed passage by the House..........................     0
Legislation passed by the House..................................    12
Legislation pending in the Senate................................     4
Legislation vetoed by the President (not overridden).............     0
Legislation enacted into Public Law..............................     1
Days of legislative hearings.....................................     7
Days of oversight hearings.......................................    22

                    Jurisdiction of the Subcommittee

    The Subcommittee on the Constitution has jurisdiction over 
the following subject matters: constitutional amendments, 
constitutional rights, federal civil rights laws, ethics in 
government, other appropriate matters as referred by the 
Chairman, and relevant oversight.

                         Legislative Activities


H. Res. 97, Expressing the sense of the House of Representatives that 
        judicial determinations regarding the meaning of the 
        Constitution of the United States should not be based on 
        judgments, laws, or pronouncements of foreign institutions 
        unless such foreign judgments, laws, or pronouncements inform 
        an understanding of the original meaning of the Constitution of 
        the United States.

    Summary.--H. Res. 97 provides that ``it is the sense of the 
House of Representatives that judicial interpretations 
regarding the meaning of the Constitution of the United States 
should not be based in whole or in part on judgments, laws, or 
pronouncements of foreign institutions unless such foreign 
judgments, laws, or pronouncements inform an understanding of 
the original meaning of the Constitution of the United 
States.'' In several recent cases, the U.S. Supreme Court has 
cited decisions by foreign courts and treaties not ratified by 
this country to support its interpretations of the United 
States Constitution.
    Legislative History.--H. Res. 97 was introduced by Rep. Tom 
Feeney on February 15, 2005. On July 19, 2005, the Constitution 
Subcommittee held a hearing on H. Res. 97 at which testimony 
was received from the following witnesses: Mr. Viet D. Dinh, 
Professor, Georgetown University Law Center; Mr. M. Edward 
Whelan, III, President, Ethics and Public Policy Center; Mr. 
Nicholas Q. Rosenkranz, Professor, Georgetown University Law 
Center; Ms. Sarah Cleveland, Professor, University of Texas 
School of Law. The following material was submitted for the 
hearing record: Prepared Statement of the Honorable Tom Feeney, 
a Representative in Congress from the State of Florida; 
Prepared Statement of the Honorable Bob Goodlatte, a 
Representative in Congress from the State of Virginia; Prepared 
Statement of Public Citizen's Global Trade Watch. On September 
29, 2005, the Constitution Subcommittee ordered favorably 
reported H. Res. 97 by a vote of 8 to 3.

H. Con. Res. 335, Honoring and praising the National Association for 
        the Advancement of Color People on the occasion of its 97th 
        Anniversary.

    Summary.--H. Con. Res. 335 honors and praises the NAACP on 
the occasion of its 97th Anniversary. The NAACP was founded in 
1909 and since that time has been at the forefront of all of 
the struggles for racial justice. Through members, such as Rosa 
Parks, who ignited a national movement, and former Supreme 
Court Justice Thurgood Marshall, whose leadership led to the 
landmark legal victory, Brown v. Board of Education, the NAACP 
has been a force through which our nation has undergone 
significant change.
    Legislative History.--H. Con. Res. 335 was introduced by 
Representative Al Green on February 8, 2006, and was 
subsequently referred to the House Judiciary Committee and the 
Subcommittee on the Constitution. Chairman Sensenbrenner moved 
to suspend the rules and the resolution passed the House by 
voice vote on March 1, 2006. The resolution was agreed to 
without amendment and with a preamble by unanimous consent in 
the Senate on May 10, 2006.

H.R. 748--Child Interstate Abortion Notification Act

    Summary.--H.R. 748, the ``Child Interstate Abortion 
Notification Act'' (CIANA) has two primary purposes: to protect 
the health and safety of young girls by preventing valid and 
constitutional state parental involvement laws from being 
circumvented and to protect the right of parents to be involved 
in the medical decisions of their minor daughters. To achieve 
these purposes, H.R. 748 makes it a federal offense to 
knowingly transport a minor across a state line, with the 
intent that she obtain an abortion, in circumvention of a 
state's parental consent or parental notification law. H.R. 748 
also requires that a parent, or if necessary a legal guardian, 
be notified pursuant to a state parental involvement law or a 
default federal parental notification rule when a minor crosses 
state lines to obtain an abortion. A violation of H.R. 748 is a 
Class One misdemeanor, carrying a fine of up to $100,000 and 
incarceration of up to one year. H.R. 748 supports state laws 
that provide parents with the necessary information to fulfill 
their obligation to care for their minor children, and it 
affirms the common-sense notion that parents have the legal 
right to be involved in medical decisions relating to their 
minor children when those decisions involve interstate 
abortions.
    Legislative History.--H.R. 748, the ``Child Interstate 
Abortion Notification Act'' (CIANA), was introduced on February 
10, 2005, by Rep. Ileana Ros-Lehtinen. The Subcommittee on the 
Constitution held a hearing on H.R. 748 on March 3, 2005, at 
which testimony was received from the following witnesses: Ms. 
Marcia Carroll, Victim, Lancaster, Pennsylvania; Professor 
Richard Myers, Professor of Law, Ave Maria School of Law, Ann 
Arbor, MI; Dr. Warren Seigel, FAAP, FSAM, Director of 
Adolescent Medicine, Chairman of Pediatrics, Coney Island 
Hospital; Professor Teresa S. Collett, Professor of Law, 
University of St. Thomas School of Law, Minneapolis, MN. The 
following materials were submitted for the hearing record: 
Prepared Statement of the Honorable Steve Chabot, 
Representative from Ohio's 1st district, and Chairman of the 
Subcommittee on Constitution; Prepared Statement of the 
Honorable Jerrold Nadler, Representative from New York's 8th 
district, and Ranking Member of the Subcommittee on the 
Constitution; Prepared Statement of the Honorable Steve King, 
Representative from Iowa's 5th district; Prepared Statement of 
the Honorable Ileana Ros-Lehtinen, Representative from 
Florida's 18th district; Prepared Statement of Dr. John C. 
Harrison, Professor of Law, University of Virginia; abortion 
form for Ashley Carroll, signed by her doctor, Dr. Kaji, and 
materials related to Dr. Kaji and Brigham clinics submitted by 
Chairman Steve Chabot. On March 17, 2005, the Subcommittee on 
the Constitution forwarded H.R. 748 (as amended) to the House 
Judiciary Committee by a voice vote. On April 13, 2005, the 
House Judiciary Committee reported out the bill (as amended) by 
a vote of 20 to 13. On April 27, 2005, H.R. 748 (as amended) 
passed the House by a vote of 270 to 157.

S. 403--Child Custody Protection Act

    Summary.--S. 403, the ``Child Custody Protection Act'' 
(CCPA) as received from the Senate and the ``Child Interstate 
Abortion Notification Act'' as amended by the House, has two 
primary purposes: to protect the health and safety of young 
girls by preventing valid and constitutional state parental 
involvement laws from being circumvented and to protect the 
right of parents to be involved in the medical decisions of 
their minor daughters. To achieve these purposes, S. 403 makes 
it a federal offense to knowingly transport a minor across a 
state line, with the intent that she obtain an abortion, in 
circumvention of a state's parental consent or parental 
notification law. As amended by the House, S. 403 also requires 
that a parent, or if necessary a legal guardian, be notified 
pursuant to a state parental involvement law or a default 
federal parental notification rule when a minor crosses state 
lines to obtain an abortion. A violation of S. 403 is a Class 
One misdemeanor, carrying a fine of up to $100,000 and 
incarceration of up to one year. S. 403 supports state laws 
that provide parents with the necessary information to fulfill 
their obligation to care for their minor children, and it 
affirms the common-sense notion that parents have the legal 
right to be involved in medical decisions relating to their 
minor children when those decisions involve interstate 
abortions.
    Legislative History.--S. 403 was introduced by Sen. John 
Ensign on February 16, 2005, and passed the Senate on July 25, 
2006, by a vote of 65 to 34. It was received in the House that 
same day. As received in the House, S. 403, the ``Child Custody 
Protection Act'' makes it a federal offense to knowingly 
transport a minor across a state line, with the intent that she 
obtain an abortion, in circumvention of a state's parental 
consent or parental notification law. The House substituted 
into S. 403 language nearly identical to H.R. 748, the ``Child 
Interstate Abortion Notification Act,'' which the House passed 
(as amended) on April 27, 2005, by a vote of 270 to 157. The 
House substitute to S. 403 includes technical and conforming 
changes that further improve the legislation. It contains two 
clarifying provisions adopted in the other body to prevent a 
parent who has committed incest from being able to obtain money 
damages from someone who might transport a minor across State 
lines to obtain an abortion and makes it a Federal crime for 
someone who has committed incest to transport a minor across a 
State line with the intent that the minor obtain an abortion. 
In addition, the substitute contains an exception to the 
notification requirement if a parent is physically present when 
the minor obtains the abortion and makes clear that the 
parental notification need not be provided by the abortion 
provider personally but may also be provided by an agent of the 
abortion provider. The substitute also contains a technical 
change to the definition of ``abortion'' that excludes 
treatment for potentially dangerous pregnancies and creates a 
new ``medical emergency exception'' to ensure the bill will 
withstand any constitutional challenge. The substitute makes 
clear that its provisions apply when State lines are crossed to 
enter into any foreign nation or an Indian tribe. Finally, the 
substitute changes the effective date so that the Act and its 
amendments shall take effect 45 days after the date of 
enactment of the Act. The House passed S. 403, as amended, on 
September 26, 2006, by a vote of 264 to 153. Cloture on a 
motion to concur to the House amendment failed in the Senate on 
September 29, 2006, by a vote of 57 to 42.

H.R. 2679, the Public Expression of Religion Act of 2005

    Summary.--H.R. 2679 (as amended) amends 42 U.S.C. 
Sec. Sec. 1983 and 1988 to limit the available remedies to 
injunctive and declarative relief and to disallow attorney's 
fees awards to prevailing parties in Establishment Clause 
cases. 42 U.S.C. Sec. 1983 is the federal statute that allows 
people to sue State and local governments for alleged 
constitutional violations of their individual rights. 42 U.S.C. 
Sec. 1988 is the federal fee-shifting statute that allows 
prevailing plaintiffs in lawsuits filed under Sec. 1983 to be 
awarded attorney's fees from the defendant. H.R. 2679 will 
prevent the legal extortion that currently requires State and 
local governments, and the federal government, to accede to 
demands for the removal of religious text and imagery when such 
removal is not compelled by the Constitution.
    Legislative History.--H.R. 2679 was introduced by Rep. John 
Hostettler on May 26, 2005. On June 22, 2006, the Constitution 
Subcommittee held a hearing on H.R. 2679 at which testimony was 
received from the following witnesses: Mr. Rees Lloyd, 
Commander, District 21, The American Legion; Mr. Mathew D. 
Staver, Founder and Chairman, Liberty Counsel, Interim Dean, 
Liberty University School of Law; Mr. Marc Stern, General 
Counsel, American Jewish Congress; Professor Patrick Garry, 
Associate Professor of Law, University of South Dakota School 
of Law. The following materials were submitted for the hearing 
record: Prepared Statement of the Honorable John Conyers, Jr., 
a Representative in Congress from the State of Michigan, and 
Member, Subcommittee on the Constitution; Additional 
Information submitted by Mathew D. Staver, Founder and 
Chairman, Liberty Counsel, Interim Dean, Liberty University 
School of Law; Additional Information submitted by Marc Stern, 
General Counsel, American Jewish Congress; Prepared Statement 
of the Alliance Defense Fund concerning H.R. 2679, the ``Public 
Expression of Religion Act of 2005''; Prepared Statement of 
Steven W. Fitschen, President, The National Legal Foundation; 
and the following letters inserted into the record by the 
Honorable Robert C. Scott--Letter from Ruth Flower, Legislative 
Director, Friends Committee on National Legislation, to The 
Honorable Steve Chabot, dated June 19, 2006; Letter from Wade 
Henderson, Executive Director, and Nancy Zirkin, Deputy 
Director, Leadership Conference on Civil Rights, to Members of 
the Judiciary Committee, dated June 21, 2006; Letter from 
Caroline Fredrickson, Director, American Civil Liberties Union, 
dated June 22, 2006; Letter from the American Civil Liberties 
Union, et. al., dated June 22, 2006; Letter from the Reverend 
Barry W. Lynn, Executive Director, Americans United for 
Separation of Church and State, to Chairman Chabot and Ranking 
Member Nadler, dated June 22, 2006. The Committee on the 
Judiciary held a markup of H.R. 2679 on July 26 and September 
7, 2006, reporting the bill favorably with an amendment by a 
voice vote on September 7, 2006. The House passed H.R. 2679, as 
amended, on September 26, 2006, by a vote of 244 to 173. No 
further action was taken on the bill in the Senate.

H.R. 4128, The Private Property Rights Protection Act

    Summary.--H.R. 4128 responds to the Supreme Court's 
notorious June 23, 2005 decision in Kelo v. City of New London, 
in which it held that ``economic development'' can be a 
``public use'' under the Fifth Amendment's Takings Clause. In 
doing so, the Supreme Court allowed the government to take 
perfectly fine private property from one small homeowner and 
give it to a large corporation for a private research facility. 
H.R. 4128 enhances the penalty for states and localities that 
abuse their eminent domain power in that way by denying states 
or localities that commit such abuse all federal economic 
development funds for a period of two years. H.R. 4128 also 
includes an express private right of action to make certain 
that those suffering injuries from a violation of the bill will 
be allowed access to state or federal court to enforce its 
provisions. It also includes a fee-shifting provision--
identical to those in other civil rights laws--that allows a 
prevailing property owner attorney and expert fees as part of 
the costs of bringing the litigation to enforce the bill's 
provisions. Under H.R. 4128, States and localities will have 
the clear opportunity to cure any violation before they lose 
any federal economic development funds by either returning or 
replacing the improperly taken property. H.R. 4128 also 
includes carefully crafted refinements of the definition of 
``economic development'' that specifically allow the types of 
takings that, prior to the Kelo decision, had achieved a 
consensus as to their appropriateness. These exceptions include 
exceptions for the transfer of property to public ownership, to 
common carriers and public utilities, and for related things 
like pipelines. The bill also makes reasonable exceptions for 
the taking of land that is being used in a way that constitutes 
an immediate threat to public health and safety and the 
redeveloping of ``brownfields'' sites in which contamination or 
the threat of contamination prevents their private development. 
The bill also makes exceptions for the merely incidental use of 
a public building by a private entity, such as a small 
privately run gift shop on the ground floor in a public 
hospital, for the acquisition of abandoned property, and for 
clearing defective chains of title in which no one can be said 
to really own the property in the first place. Finally, H.R. 
4128 would not become effective until the start of the first 
fiscal year following the enactment of the legislation, in 
order to provide states and localities with sufficient lead 
time within which to prepare to come into compliance with the 
legislation. And H.R. 4128 would not apply to any project for 
which condemnation proceedings had begun prior to enactment.
    Legislative History.--H.R. 4128 was introduced by Rep. 
Sensenbrenner on October 25, 2005. A hearing on the issues 
surrounding this legislation was held in the House Subcommittee 
on the Constitution on September 22, 2005, at which the 
following witnesses appeared: Ms. Dana Berliner, Senior 
Attorney, Institute for Justice; Mr. Michael Cristofaro, 
Resident, New London, Connecticut; Mr. Hilary O. Shelton, 
Director, NAACP, Washington Bureau; Mr. Bart Peterson, Mayor, 
Indianapolis, Indiana. On October 31, 2005, H.R. 4128 was 
ordered reported (as amended) by the House Judiciary Committee 
by a vote of 27 to 3. On November 3, 2005, H.R. 4128 passed the 
House by a vote of 376 to 38.

H.R. 4772, The Private Property Rights Implementation Act

    Summary.--H.R. 4772 would override several judicially 
created prudential rules that currently prohibit most property 
owners from getting into federal court with a federal claim 
under the Takings Clause of the Constitution. H.R. 4772 would 
do so by preventing a federal court from refusing to hear a 
case in which only federal claims are alleged. If a matter of 
state law is unresolved, then the federal district court may 
certify the question of state law to the highest appellate 
court of that state. After the state appellate court resolves 
the question certified to it, the federal district court shall 
proceed with resolving the merits of the federal claim. H.R. 
4772 would also clarify when a constitutional takings claim is 
``ripe'' and therefore ready for federal adjudication. Under 
the bill, only after land use reviews at the application, 
waiver, and administrative appeal levels would a property owner 
have a ``ripe'' federal constitutional claim for adjudication 
by a federal court. H.R. 4772 would also clarify the rights of 
property owners raising certain types of constitutional claims 
by doing the following: clarifying that conditions or exactions 
that are imposed upon a property owner in order to receive a 
permit must be roughly proportional to the impact the 
development might have; clarifying the so-called ``denominator 
question'' in cases concerning subdivided lots by requiring 
that federal courts look at the impact of a takings claim on 
each individual lot that is recognized as a separate 
independent property unit under state law; and by clarifying 
that the standard for due process claims in a takings case is 
an ``arbitrary and capricious'' standard.
    Legislative History.--H.R. 4772 was introduced by Rep. 
Chabot on February 16, 2006. The Subcommittee held a hearing on 
this legislation on June 8th, 2006. The following witnesses 
appeared at the hearing: Mr. Joseph Trauth, Partner, Keating, 
Muething & Klekamp, PLL; Mr. Franklin Kottschade, representing 
the National Association of Home Builders; Daniel L. Siegel, 
Supervising Deputy Attorney General, Office Attorney General, 
California, Land Law Section; Mr. Steven Eagle, Professor of 
Law, George Mason Law School. On July 12, 2006, H.R. 4772 was 
ordered reported (as amended) by the House Judiciary Committee 
by voice vote. H.R. 4772 was brought up on the Suspension 
Calendar on September 26, 2006, but failed to obtain the 
requisite two-thirds majority by a vote of 234-172. H.R. 4772 
was brought up under a rule on September 29, 2006, and it 
passed the House by a vote of 231-181. No further action was 
taken on the bill in the Senate.

H.R. 4975, the 527 Reform Act of 2006

    Summary.--H.R. 4975 provides for increased disclosure of 
efforts by paid lobbyists to influence the decision-making 
process and actions of Federal legislative and executive branch 
officials while protecting the constitutional right of the 
people to petition the government for a redress of their 
grievances. The Act is designed to strengthen public confidence 
in government by expanding the scope of disclosure under the 
Lobbying Disclosure Act of 1995. It also creates a more 
effective and equitable system for administering and enforcing 
these disclosure requirements.
    Legislative History.--Rep. David Dreier introduced H.R. 
4975 on March 16, 2006, and the bill was referred to the 
Committee on the Judiciary, as well as the Committees on House 
Administration, Rules, Government Reform, and Standards of 
Official Conduct. On April 4, 2006, the Subcommittee on the 
Constitution held a hearing on H.R. 4975 at which the following 
individuals testified: Mr. Kenneth A. Gross, Partner, Skadden, 
Arps, Slate, Meagher & Flom LLP; Mr. John Graham, President and 
CEO of the American Society of Association Executives; the 
Honorable Chellie Pingree, President and CEO, Common Cause; and 
the Honorable Bradley A. Smith, Professor of Law, Capital 
University Law School, on behalf of Center for Competitive 
Politics. On April 5, 2006, the Committee on the Judiciary held 
a markup on the bill and reported it favorably, with amendment, 
by a recorded vote of 18 to 16. On April 6, 2006, the Committee 
on House Administration held a markup on the bill and reported 
it favorably without amendment by a vote of 5 to 2. On April 5, 
2006, the Committee on Rules held a markup on H.R. 4975 and 
reported it favorable, with amendment, by voice vote. On April 
6, 2006, the Committee on Government Reform held a markup on 
the bill and reported it favorably, with amendment, by voice 
vote. The Committee on Standards of Official Conduct discharged 
the bill without further consideration. The House of 
Representatives considered H.R. 4975 on May 3, 2006, and passed 
the bill by a vote of 217 to 213.

H.R. 5575, the Pigford Claims Remedy Act of 2006

    Summary.--H.R. 5575, the Pigford Claims Remedy Act of 2006, 
provides a mechanism for the determination on the merits of the 
claims of claimants who met the class criteria in a civil 
action relating to racial discrimination by the Department of 
Agriculture, but who were denied that determination. H.R. 5575 
is intended to remedy the flaws in the administration of the 
Pigford v. Glickman Consent Decree that unintentionally left 
more than 75,000 late claim petitioners out of the Pigford 
Consent Decree. H.R. 5575 provides those farmers who filed late 
claim petitions with the Pigford Court-appointed arbitrator and 
who were denied entry into the Consent Decree with a new cause 
of action in Federal court if the late claim petitioner can 
prove that she or he meets the class definition set forth in 
the Consent Decree and has a discrimination complaint as 
defined by the Consent Decree. H.R. 5575 is the product of the 
Subcommittee on the Constitution's work over the last two 
years, which included two oversight hearings held on September 
28, 2004 and November 18, 2004, respectively and one field 
briefing conducted in Cincinnati, Ohio on February 28, 2005. In 
addition to the oversight hearings and field briefing, Chairman 
Sensenbrenner and Mr. Chabot, together with Ranking Member 
Conyers, Judiciary Committee Member Bobby Scott, Representative 
Towns, and Representative Thompson, requested a GAO study into 
the administration of the Pigford Consent Decree. The GAO 
report, which was released on April 4, 2006, made no findings 
or recommendations but described the administrative process set 
forth by the Consent Decree.
    Legislative History.--H.R. 5575, was introduced by House 
Judiciary Subcommittee on the Constitution Chairman Steve 
Chabot on June 9, 2006.

H.R. 5388, the District of Columbia Fair and Equal House Voting Rights 
        Act of 2006

    Summary.--H.R. 5388, the ``District of Columbia Fair and 
Equal House Voting Rights Act of 2006'' was introduced by Rep. 
Tom Davis and Del. Eleanor Holmes Norton in a bipartisan effort 
to give citizens of the District of Columbia direct 
representation in the House of Representatives. The legislation 
has two main features. First, it treats the District as a 
congressional district for the purpose of granting full House 
representation. Second, it permanently increases the size of 
the House by two members, and allocates the second seat to 
Utah, which was the state that was next in line to receive 
additional representation after the 2000 census.
    Legislative History.--Rep. Davis introduced H.R. 5388 on 
May 16, 2006, and the bill was referred to the Committee on the 
Judiciary and to the Subcommittee on the Constitution, as well 
as to the Committee on Government Reform. On May 16, 2006, the 
Committee on Government Reform held a markup on the bill and 
ordered it reported favorably, without amendment, by a vote of 
29 to 4. On September 14, 2006, the Subcommittee on the 
Constitution held a legislative hearing on the bill at which 
testimony was received from the Honorable Jon M. Huntsman, Jr., 
Governor of Utah; Dr. John Fortier, Research Fellow, American 
Enterprise Institute; Mr. Adam Charnes, Partner, Kilpatrick 
Stockton, LLP; and Professor Jonathan Turley, the J.B. & 
Maurice C. Shapiro Professor of Public Interest Law at George 
Washington University Law School. No further action on H.R. 
5388 was taken.

H.R. 6258, the Americans with Disabilities Act Restoration Act of 2006.

    Summary.--H.R. 6258, The Americans with Disabilities Act 
Restoration Act of 2006, amends the definition of disability 
currently set forth in the Americans with Disabilities Act 1990 
(ADA) and makes other conforming amendments necessary to 
reconcile the new definition with the remaining provisions 
contained in the ADA. The amendments are necessary to address 
certain Supreme Court decisions that have significantly limited 
the reach of the ADA's protections. H.R. 6258 restores the ADA 
to its original purpose, which is to provide a ``clear and 
comprehensive national mandate for the elimination of 
discrimination against individuals with disabilities,'' in 
order to ensure that all Americans, including those individuals 
with actual, recorded, or perceived physical and mental 
impairments, experience the full rights of citizenship as 
guaranteed and protected by the Constitution.
    Legislative History.--H.R. 6258, was introduced by Chairman 
Sensenbrenner, together with Mr. Hoyer, on September 29, 2006. 
Earlier in the month, the Subcommittee held a hearing on this 
legislation, titled ``The Americans with Disabilities Act: 
Sixteen Years Later.''

                          Oversight Activities


                       SUMMARY OF OVERSIGHT PLAN

    The Oversight Plan for the Constitution Subcommittee for 
the 109th Congress includes the following issues: the death 
penalty; the United States Commission on Civil Rights; the 
Civil Rights Division, U.S. Department of Justice; the 
Community Relations Service; Congressional authority under the 
Commerce Clause; the Office of Government Ethics; gender 
discrimination; property rights; religious liberty; abortion; 
civil liberties in the war on terrorism; DNA technologies; 
racial profiling; the consent decree in Pigford v. Glickman; 
the Freedom of Access to Clinic Entrances (FACE) Act; marriage; 
NCAA Due Process; the protections afforded an individual's 
right to bear arms under the Second Amendment; the role the 
United States Constitution plays in the development of 
potential newly-formed democratic constitutions; and the 
possibility of expanding eligibility for the Office of the 
President to include foreign-born citizens.

Oversight list of hearings

    U.S. Department of Justice Civil Rights Division: A Review 
of the Civil Rights Division for the Purpose of the 
Reauthorization of the U.S. Department of Justice. March 10, 
2005. (Serial No. 109-45).
    Fiscal and Management Practices of the United States 
Commission on Civil Rights. March 17, 2005. (Serial No. 109-
22).
    Economic Development and the Dormant Commerce Clause: the 
Lessons of Cuno v. Daimler Chrysler and Its Effect on State 
Taxation Affecting Interstate Commerce.'' May 24, 2005. (Serial 
No. 109-27).
    Can Congress Create a Race-Based Government? The 
Constitutionality of H.R. 309/S. 147. July 19, 2005. (Serial 
No. 109-37).
    The Supreme Court's Kelo Decision and Potential 
Congressional Responses. September 22, 2005. (Serial No. 109-
60).
    Voting Rights Act: To Examine the Impact and Effectiveness 
of the Act. October 18, 2005. (Serial No. 109-70).
    Voting Rights Act: An Examination of the Scope and Criteria 
for Coverage Under the Special Provisions of the Act. October 
20, 2005. (Serial No. 109-68).
    Voting Rights Act: Section 5 of the Act--History, Scope, 
and Purpose. October 25, 2005. (Serial No. 109-79).
    Voting Rights Act: The Continuing Need for Section 5. 
October 25, 2005. (Serial No. 109-75).
    Voting Rights Act: Section 5--Preclearance Standards. 
November 1, 2005. (Serial No. 109-69).
    Pain of the Unborn. November 1, 2005. (Serial No. 109-57).
    Voting Rights Act: Section 203--Bilingual Election 
Requirements (Part I). November 8, 2005. (Serial No. 109-83).
    Voting Rights Act: Section 5--Judicial Evolution of the 
Retrogression Standard. November 9, 2005. (Serial No. 109-74).
    Voting Rights Act: Section 203--Bilingual Election 
Requirements (Part II). November 9, 2005. (Serial No. 109-78).
    Voting Rights Act: Sections 6 and 8--The Federal Examiner 
and Observer Programs. November 15, 2005. (Serial No. 109-77).
    Scope and Myths of Roe v. Wade. March 2, 2006. (Serial No. 
109-84).
    Voting Rights Act: Evidence of Continued Need. March 8, 
2006. (Serial No. 109-103).
    Personal Information Acquired by the Government from 
Information Resellers: Is There Need for Improvement? April 4, 
2006. (Serial No. 109-98).
    The Constitution and the Line Item Veto. April 27, 2006. 
(Serial No. 109-102).
    The Implementation of the Crime Victims' Rights Provisions 
of the Justice for All Act. June 21, 2006 (Serial No. 109-144).
    The Americans with Disabilities Act of 1990: Sixteen Years 
Later. September 13, 2006 (Serial No. 109-146).

Field briefing examining the current state of Civil Rights within the 
        United States Department of Agriculture

    A field briefing was held in Cincinnati, Ohio on February 
28, 2005, to examine the current state of civil rights within 
the United States Department of Agriculture (USDA) in light of 
the 1999 Pigford v. Glickman Settlement. In particular, the 
briefing examined the status of civil rights violations that 
the settlement was intended to address and the changes the USDA 
has implemented to prevent future civil rights violations from 
occurring. Attending the field briefing was the Honorable 
Vernon Parker, Assistant Secretary of the Department of 
Agriculture for Civil Rights; Mr. John Boyd, President, 
National Black Farmer Association; Mr. George Hildebrant, Jr., 
President, Kansas Black Farmer Association; and Mr. Charlie 
Winburn, Commissioner, Ohio Civil Rights Commission.
    Assistant Secretary Parker discussed, among other things, 
the steps the USDA Office of Civil Rights (OCR) had taken to 
assist minority farmers, including holding listening sessions 
across the country. Assistant Secretary Parker discussed the 
current grievance process in place within USDA's OCR that was 
designed to resolve minority farmer complaints on a more timely 
basis.
    Mr. Hildebrant discussed, among other things, the plight of 
black farmers and the need for additional help from USDA and 
the Farm Service Agency (FSA), the agency that is responsible 
for administering the loan programs, to protect black farmers.
    Mr. Boyd discussed the history of black farmers, the 
ineffectiveness of the Pigford v. Glickman Consent Decree, and 
the need for Congress to intervene on behalf of black farmers.
    Mr. Winburn discussed the possible role for States' Civil 
Rights Commissions working with minority farmers to ensure that 
discrimination does not continue to occur.

Oversight hearing on the ``U.S. Department of Justice Civil Rights 
        Division: A review of the Civil Rights Division for the purpose 
        of reauthorization of the U.S. Department of Justice''

    The Subcommittee held its first oversight hearing over the 
U.S. Department of Justice's Civil Rights Division of the 109th 
Congress on March 10, 2005. Testifying at the hearing was the 
Honorable Alexander Acosta, Assistant Attorney General, Civil 
Rights Division, Department of Justice. Assistant Attorney 
General Acosta presented testimony to the Subcommittee on the 
following issues: section 14141 of the 1994 Violent Crime and 
Law Enforcement Act (investigating the patterns and practices 
of violations of federally protected rights by law enforcement 
officers and evaluating the progress made by the City of 
Cincinnati Police Department under the Memorandum of 
Understanding with the Department of Justice); the Help America 
Vote Act (``HAVA'') and its accessibility requirements to 
assist disabled voters; the Prison Rape Elimination Act; the 
Human Trafficking and Protection Act of 2000 and the progress 
made by the Administration since it began its trafficking 
initiative; Executive Order 13166 (Administration requirements 
that guidance be issued to assist recipients who administer 
federally funded programs); efforts to prosecute voting 
irregularities and fraud; preclearance of voting changes under 
Section 5 of the Voting Rights Act; investigations and 
prosecutions of discrimination in places of public 
accommodation, housing, and employment; enforcement of Title 
VII of the Civil Rights Act of 1964 as it relates to exemptions 
for religious organizations; enforcement of the Civil Rights of 
Institutionalized Persons Act of 1980 (CRIPA); and the Civil 
Rights Division's progress toward terminating existing school 
desegregation consent decrees and court orders issued during 
the 1960s and 1970s.

Oversight hearing on the ``Fiscal and Management Practices of the 
        United States Commission on Civil Rights''

    The Subcommittee on the Constitution continued its 
oversight of the United States Commission on Civil Rights 
(USCCR) by holding an oversight hearing on March 17, 2005, on 
the ``Fiscal and Management Practices of the United States 
Commission on Civil Rights.'' Testifying at the hearing was Mr. 
Russell G. Redenbaugh, Commissioner, United States Commission 
on Civil Rights; Mr. Kenneth Marcus, Staff Director, United 
States Commission on Civil Rights; Mr. Michael Yaki, 
Commissioner, United States Commission on Civil Rights; and Mr. 
George Harbison, Director of Human Resources and Acting Chief 
of Budget and Finance, United States Commission on Civil 
Rights.
    Commissioner Redenbaugh announced his resignation from the 
USCCR at the outset of the hearing. Chief among the reasons for 
his resignation was the lack of purpose and process guiding the 
management of the USCCR. Commissioner Redenbaugh testified that 
USCCR considers itself immune from accountability and 
oversight, such that the USCCR is unable to reform itself.
    Commissioner Yaki disagreed with Commissioner Redenbaugh's 
assessment that the USCCR was beyond assistance. Commissioner 
Yaki testified, among other things, that he believed that the 
USCCR has played a role in ``provoking debate, discussion, and 
made policymakers stand up and take notice,'' such that the 
USCCR still has a public mission to perform and should continue 
to exist. Commissioner Yaki testified that the USCCR was 
currently working to implement all of the GAO recommendations 
necessary to reform the agency.
    Staff Director Marcus testified that the USCCR was working 
under new leadership and was committed to reform. Staff 
Director Marcus testified that in the few short months since 
his arrival the USCCR had moved to implement some of the GAO 
recommendations. In addition, Staff Director Marcus testified 
that the USCCR was working to put together working groups on 
reform and project planning in order to more effectively study 
and recommend ways to better the management of the USCCR and 
the quality and credibility of its work product.
    Mr. Harbison presented testimony on his responsibilities at 
the USCCR as Chief of Budget & Finance. In particular, Mr. 
Harbison testified to the financial and management practices 
and processes utilized by the former USCCR leadership, 
including the successful attempts by past leadership to move 
all financial and management responsibilities with the Office 
of the Staff Director.
    In addition to its oversight hearing, the Subcommittee 
continued to monitor the activities of the USCCR throughout 
2005 and 2006 in a number of different ways. First, the 
Subcommittee Chairman conducted an interview with former Staff 
Director Les Jin on June 27, 2005, to better ascertain the 
financial practices adhered to by the USCCR leadership during 
the years 1996-2004, which led to the USCCR's current financial 
difficulties. This meeting was held in place of issuing a 
subpoena compelling the appearance of former Staff Director Les 
Jin before the Subcommittee. In addition, since late November 
2005, the Subcommittee has monitored the development of the 
USCCR's strategic plan. On November 14, 2005, the Subcommittee 
expressed concerns to the USCCR about the draft strategic plan 
being circulated and made recommendations to the USCCR on ways 
to strengthen its plan. A follow-up letter was sent to the 
USCCR on December 19, 2005, inquiring on the progress made by 
the USCCR in revising the strategic plan. On January 23, 2006, 
Subcommittee staff met with representatives from GAO and the 
USCCR to facilitate the creation of an effective strategic 
plan. Despite continued follow-up as recently as July 31, 2006, 
the USCCR has yet to submit a strategic plan to the 
Subcommittee.
    In addition to the Committee's oversight activities, GAO 
was tasked with its third and final investigation into the 
management operations and practices of the USCCR in April 2005. 
On June 1, 2006, GAO issued its third report, titled ``The U.S. 
Commission on Civil Rights: The Commission Should Strengthen 
Its Quality Assurance Policies and Make Better Use of Its State 
Advisory Committees,'' which addressed the following areas of 
concern: (1) the adequacy of the USCCR's policies for ensuring 
the quality of its work; and (2) the role of the USCCR's State 
Advisory Committees (SACs) in contributing to its work. GAO 
concluded that policies were lacking within the USCCR to ensure 
the credibility of its work.

Joint oversight hearing on ``Economic Development and the Dormant 
        Commerce Clause: the lessons of Cuno v. Daimler Chrysler and 
        its effect on State taxation affecting interstate commerce''

    On May 24, 2005, the House Subcommittee on the Constitution 
and the Subcommittee on Commercial and Administrative Law 
conducted a joint oversight hearing on ``Economic Development 
and the Dormant Commerce Clause: the Lessons of Cuno v. 
DaimlerChrysler and Its Effect on State Taxation Affecting 
Interstate Commerce.'' In Cuno v. DaimlerChrysler, Inc., the 
Sixth Circuit held that portions of Ohio's tax code were 
unconstitutional on the grounds that they violated the Dormant 
Commerce Clause.\1\ At issue was Ohio's franchise tax credit 
for companies that chose to ``[purchase] new manufacturing 
machinery and equipment during the qualifying period, provided 
that the new manufacturing machinery and equipment are 
installed in [Ohio].'' \2\ Under the terms of the tax credit 
and a related property tax exemption,\3\ DaimlerChrysler was to 
obtain approximately $280 million in tax relief over ten years 
for investing approximately $1.2 billion in a new vehicle 
assembly plant that would generate approximately 5,000 new jobs 
in Toledo, Ohio.\4\
---------------------------------------------------------------------------
    \1\ Cuno v. DaimlerChrysler, Inc., 386 F.3d 738 (6th Cir. 2004), 
vacated in part by DaimlerChrysler Corp. v. Cuno, 126 S.Ct. 1854 
(2006).
    \2\ Ohio Rev. Code Ann. Sec. 5733.33(B)(1).
    \3\ The property tax exemption was upheld against challenges under 
the Dormant Commerce Clause and the Equal Protection clause of the Ohio 
Constitution. Cuno, 386 F.3d at 748-49.
    \4\ Id. at 741; see also Gregory Castanias, National Movement 
Against Economic-Development Incentives Makes Inroads in the Sixth 
Circuit and Raises Questions About Similar Incentives Elsewhere, Mondaq 
Bus. Briefing, Feb. 7, 2005, available at http://www.mondaq.com/
article.asp?articleid=30851&searchresults=1.
---------------------------------------------------------------------------
    The purpose of the hearing was to explore the scope of the 
Dormant Commerce Clause vis-a-vis state tax credits, and the 
implications of the Sixth Circuit's decision in Cuno v. 
DaimlerChrysler on that body of law. The hearing also examined 
Congress' ability to pass legislation that renders such State 
statutory schemes lawful and examine the impact these tax 
credits have on promoting business development in economically 
depressed areas.
    The following witnesses appeared at the hearing: the 
Honorable Bruce Johnson, Lieutenant Governor of the State of 
Ohio; Ms. Michele R. Kuhrt, Director of Taxes and Financial 
Administration for Lincoln Electric; Professor Walter 
Hellerstein, Francis Shackelford Distinguished Professor of 
Taxation Law, University of Georgia School of Law; and 
Professor Edward A. Zelinsky, Benjamin N. Cardozo School of 
Law, Yeshiva University, New York, New York.
    Lieutenant Governor Johnson testified that economic 
development incentives, like those at issue in the Cuno case, 
are necessary for states to compete against other states and 
foreign nations to attract businesses to the area. He further 
testified that if these incentives are held unconstitutional, 
Ohio will lose jobs and income to other countries.
    Ms. Kuhrt testified that economic incentives play an 
important role in determining where her company, Lincoln 
Electric, chooses to open new operations. She testified that 
Ohio's investment credits were the deciding factor in her 
company's decision to expand its operations outside of 
Cleveland. Those expansions created 481 new jobs, and, in her 
opinion, the new tax revenue generated from those new employees 
would significantly compensate the state of Ohio for the one-
time incentives that the state gave Lincoln Electric, thus 
making it a wise business decision for the state.
    Professor Hellerstein testified that the Sixth Circuit's 
opinion in Cuno was not unusual in the sense that courts had 
invalidated a number of state tax schemes on Dormant Commerce 
Clause grounds. Professor Hellerstein also testified that 
courts' interpretations of the Dormant Commerce Clause have 
been ``difficult to discern.'' For that reason, Professor 
Hellerstein testified that the Congress could and should 
address the validity of the tax incentives at issue in Cuno 
under Congress' affirmative Commerce Clause authority.
    Professor Zelinsky testified that the Sixth Circuit decided 
Cuno wrongly on the grounds that there was no principled way to 
distinguish between the state tax incentives that the Court had 
struck down as opposed to the property tax incentives that it 
had upheld. Professor Zelinsky also supported the view that 
Congress should overturn Cuno legislatively.

Oversight hearing on ``Can Congress Create a Race-Based Government? The 
        Constitutionality of H.R. 309/S. 147''

    On July 19, 2005, the Subcommittee on the Constitution held 
an oversight hearing examining whether Congress has the 
authority to create a raced-based government. In particular, 
the Subcommittee examined the constitutionality of H.R. 309, 
and its companion S. 147, the Native Hawaiian Government 
Reorganization Act of 2005. Witnesses presenting testimony to 
the Subcommittee included: the Honorable Mark Bennett, Attorney 
General, State of Hawaii; Mr. Shannen Coffin, Former Deputy 
Assistant Attorney General for Federal Programs, Department of 
Justice and current law partner, Steptoe & Johnson, LLP; Mr. H. 
William Burgess, retired attorney and grassroots advocate for 
Aloha for All, Inc.; and Mr. Bruce Fein, constitutional law 
expert and former Assistant Director, Office of Legal Policy, 
Department of Justice.
    Attorney General Bennett testified on the constitutionality 
of H.R. 309 and the benefits that a Native Hawaiian government 
would bring to the Native Hawaiian people. Attorney General 
Bennett testified that since 1910 Congress has passed more than 
160 pieces of legislation recognizing the special status of 
Native Hawaiians and that H.R. 309 provides a political status 
to Native Hawaiians that is no different from the status 
afforded to Native Americans.
    Mr. Coffin testified, among other things, that the Supreme 
Court has noted that the use of race and ancestry to 
distinguish citizens is subject to strict scrutiny, and such 
legislation will be upheld only if it is narrowly tailored to 
achieve a compelling state interest. Mr. Coffin also referenced 
the Supreme Court's decision in Rice v. Cayetano, in which the 
Court rejected similar legislation enacted by the State of 
Hawaii. In Cayetano, the Supreme Court declined to apply the 
tribal concept, which has been the basis of recognizing Native 
American tribes as quasi-sovereign entities.
    Mr. Burgess presented testimony on the history of Hawaii 
and the historical differences between the assimilation of 
Native Hawaiians into western civilization and the existence of 
Native Americans as autonomous quasi-sovereign governing 
entities prior to the discovery and cultivation of American 
society. In particular, Mr. Burgess reminded the Subcommittee 
that upon admittance to the Union, the State of Hawaii 
considered itself ``the melting pot of many racial and national 
origins from which has been produced a common nationality, a 
common patriotism, a common faith in freedom and in the 
institutions of America.''
    Mr. Fein testified, among other things, that Congress does 
not have the affirmative power to create a race-based 
government, where none existed before. Mr. Fein noted the 
differences between the treaties negotiated with Native 
American tribes both prior to and after the Constitution was 
ratified and the treaties negotiated between the United States 
and the Kingdom of Hawaii finding that the treaties ratified 
with the Kingdom of Hawaii were replicas of the treaties 
ratified with France and Britain (i.e., the treaties recognized 
the Kingdom as a foreign nation).

Oversight hearing on ``The Supreme Court's Kelo Decision and Potential 
        Congressional Responses''

    On September 22, 2005, the Subcommittee on the Constitution 
held on oversight hearing on ``The Supreme Court's Kelo 
Decision and Potential Congressional Responses.'' Witnesses 
included: Ms. Dana Berliner, Senior Attorney, Institute for 
Justice; Mr. Michael Cristofaro, Resident, New London, 
Connecticut; Mr. Hilary O. Shelton, Director, NAACP, Washington 
Bureau; and Mr. Bart Peterson, Mayor, City of Indianapolis, 
Indiana.
    Ms. Berliner testified, among other things, that eminent 
domain affects real people. Real people lose the homes they 
love and watch as they are replaced with condominiums. Real 
people lose the businesses they count on to put food on the 
table and watch as they are replaced with shopping malls. And 
all this happens because localities find condos and malls 
preferable to modest homes and small businesses. Federal law 
currently allows expending federal funds to support 
condemnations for the benefit of private developers. By doing 
so, it encourages this abuse nationwide. Using eminent domain 
so that another, richer, better-connected person may live or 
work on the land you used to own tells Americans that their 
hopes, dreams and hard work do not matter as much as money and 
political influence. The use of eminent domain for private 
development has no place in a country built on traditions of 
independence, hard work, and the protection of property rights.
    Mr. Cristofaro testified, among other things, that Congress 
needs to send a strong message to municipalities that tear down 
working class neighborhoods to replace them with office 
buildings or a big-box retailer: if you do so, you will not 
receive federal tax dollars for economic development. By doing 
this, Congress would be protecting families like Mr. 
Cristofaro's who simply want to keep the homes they love.
    Mr. Shelton testified, among other things, that the Supreme 
Court's decision in Kelo v. City of New London will prove to be 
especially harmful to African Americans and other racial and 
ethnic minority Americans. By allowing pure economic 
development motives to constitute public use for eminent domain 
purposes, state and local governments will now infringe on the 
property rights of those with less economic and political power 
with more regularity. These groups, all low-income Americans, 
and a disparate number of African Americans and other racial 
and ethnic minority Americans, are the least able to bear this 
burden.
    Mr. Peterson testified, among other things, that economic 
development is a public use. By subjecting development projects 
to public debate and by planning these projects with the public 
welfare in mind, eminent domain allows cities and their 
citizens to develop the community in a way that is transparent 
and beneficial for all. Municipal leaders have a responsibility 
to engage in public conversation about eminent domain that can 
help dispel inaccuracies and stereotypes. There is, however, a 
delicate balance between minimizing the burdens on individuals 
and maximizing benefits to the community. The art of compromise 
is essential to going forward.

Oversight hearing on the ``Voting Rights Act: To Examine the Impact and 
        Effectiveness of the Act''

    On October 18, 2005, the Subcommittee held the first of ten 
oversight hearings on the Voting Rights Act of 1965 (VRA). The 
first hearing examined the impact of the VRA on minority voters 
and its effectiveness in stopping discrimination over the last 
41 years. The Subcommittee took testimony from four witnesses 
including: the Honorable Jack Kemp, former Secretary of Housing 
and Urban Development and former Member of the House of 
Representatives; the Honorable Marc Morial, President and CEO, 
National Urban League, Ms. Ann Marie Tallman, President and 
General Counsel, Mexican American Legal Defense and Education 
Fund; and the Honorable Joe Rogers, Former Lieutenant Governor, 
State of Colorado.
    Secretary Kemp testified that the right to vote and to 
participate in the political process is the most fundamental 
right of our democratic system of government. Secretary Kemp 
testified that the VRA is the most important civil rights 
legislation that the nation has ever enacted in the past 40 
years and if it is not reauthorized local and State 
jurisdictions will more easily be able to discrimination 
against minority voters.
    Mr. Morial testified, among other things, on the impact 
that the VRA has had on him, his family, and his hometown of 
New Orleans, Louisiana. Mr. Morial testified that the State of 
Louisiana did not have an African American representative until 
1967, despite the fact that African Americans made up almost a 
third of the population. The VRA enabled his father to become 
the first serving elected African American in 1967 since 
reconstruction. Mr. Morial emphasized that without the VRA it 
would have been highly unlikely that he, his father, or any of 
the many other African American elected officials would be 
where they are today.
    Ms. Tallman testified, among other things, that the VRA has 
done more than any other law to ensure that the nation moved 
beyond discriminatory election laws that have tarnished the 
electoral process. However, Ms. Tallman emphasized that the VRA 
is still needed. Ms. Tallman testified that the VRA has 
facilitated the participation of Latinos/Latinas in the 
electoral process at all levels of government. In addition to 
the benefits of Section 5--preclearance, Ms. Tallman emphasized 
the need to continue Section 203, the bilingual assistance 
provisions, which have assisted the more than 4.3 million 
voting age citizens who are limited English proficient and in 
need of assistance.
    Lieutenant Governor Rogers testified, among other things, 
on the work that was being conducted by the National Commission 
on the Voting Rights Act (Commission), which was established by 
the Lawyers' Committee For Civil Rights Under Law for the sole 
purpose of examining the effectiveness and continuing needs for 
the Voting Rights Act. Lieutenant Governor Rogers discussed the 
hearings being conducted by the Commission and the evidence 
received by the Commission to date. Lieutenant Governor Rogers 
told the Subcommittee that according to the evidence presented, 
discrimination in voting appears to be significant, although 
progress has been made. In addition, Rogers testified that 
racially polarized voting continues to plague elections 
throughout the country and although Section 2, a permanent 
provision, is effective, Section 5 remains a necessary 
provision to ensure that discriminatory voting procedures are 
not implemented in the first place.

Oversight hearing on the ``Voting Rights Act: An Examination of the 
        Scope and Criteria for Coverage Under the Special Provisions of 
        the Act''

    On October 20, 2005, the Subcommittee on the Constitution 
held the second of ten hearings examining the Voting Rights Act 
of 1965 (VRA). The second hearing examined the coverage 
formula, which is set forth in Section 4(b) of the VRA and is 
used to identify States and jurisdictions for coverage, and the 
bailout process that covered states and jurisdictions are able 
utilize to terminate coverage. Testifying at the hearing was: 
the Honorable Michael Steele, Lieutenant Governor, the State of 
Maryland; Mr. Jose Garza, Voting Rights Attorney, League of 
United Latin American Citizens (LULAC); Mr. Armand Derfner, 
voting rights attorney, Derfner, Altman & Wilborn; and Mr. J. 
Gerald Hebert, Former Acting Chief, Civil Rights Division, 
Department of Justice.
    Lieutenant Governor Steele testified, among other things, 
on the impact that the VRA and Section 5's preclearance 
requirements have had on non-covered jurisdictions, 
particularly illustrating to non-covered jurisdictions the 
types of election practices and redistricting plans that the 
Department of Justice and District Court for the District of 
Columbia find to be discriminatory.
    Mr. Garza presented the record that LULAC had compiled to 
date, through its litigation efforts, on the history of 
discrimination against Latinos in the voting process. In 
particular, Mr. Garza testified that many of the same 
discriminatory practices that occurred against African 
Americans in the South were used against Mexican Americans in 
the State of Texas. Mr. Garza emphasized that these practices 
were not only used in 1954 and 1964 but were also used in 1984. 
As a result, the need for Section 5 continues, especially in 
the State of Texas.
    Mr. Derfner testified, among other things, to the 
importance of the VRA and the importance of Section 4, which 
sets forth the formula for coverage. Mr. Derfner discussed the 
importance of: (1) enacting Section 4 in order to prohibit the 
problems that Congress could identify (i.e., literacy tests and 
other devices); as well as (2) enacting the provisions Section 
4 triggers, such as Section 5 and Sections 6 through 8, in 
order to address problems that Congress could not yet identify. 
Under this structure, Mr. Derfner testified the VRA remains an 
effective tool to protecting minority voters.
    Mr. Hebert testified on the effectiveness of the current 
bailout process. Mr. Hebert testified that the ten-year time 
frame in which a jurisdiction must demonstrate a clean record 
in order to terminate coverage (i.e., that it has not had a 
test or device in place, no final judgements, no objections, no 
examiners, compliance with all voting requirements, and 
constructive efforts to integrate the minority community into 
the electoral process) continues to be an appropriate process 
and easy to meet if a jurisdiction is serious about bailout. 
Moreover, Mr. Hebert emphasized that the effectiveness of the 
bailout provision is central to demonstrating the 
constitutionality of the VRA.

Oversight hearing on the ``Voting Rights Act: Section 5 of the Act--
        History, Scope, and Purpose''

    On October 25, 2005, the Subcommittee on the Constitution 
held the third of ten oversight hearings on the Voting Rights 
Act of 1965 (VRA). The hearing focused on Section 5 of the 
Voting Rights Act and the effectiveness of the preclearance 
requirement in stopping and deterring discriminatory voting 
changes from being enacted. Testifying at the hearing was: the 
Honorable Bradley Schlozman, Acting Assistant Attorney General, 
Civil Rights Division, Department of Justice; Mr. Edward Blum, 
Visiting Fellow, American Enterprise Institute; Ms. Anita 
Earls, Director of Advocacy, Center for Civil Rights; Ms. Nina 
Perales, Regional Counsel, Mexican American Legal Defense and 
Education Fund.
    Assistant Attorney General Schlozman provided an overview 
of the Department of Justice's role in administering Section 5. 
In particular, Assistant Attorney General Schlozman presented 
testimony that the Department of Justice receives between 
4,000-6,000 submissions annually from covered jurisdictions, in 
which redistricting plans comprise a small part. Assistant 
Attorney Schlozman testified that the Department of Justice's 
role in the administrative process is to review voting changes 
to ensure that they are not retrogressive within the 60-day 
period set forth by Section 5.
    Mr. Blum testified, among other things, that American 
society has reached a point where the VRA is no longer 
necessary. Mr. Blum testified that a study commissioned by the 
American Enterprise Institute (AEI) demonstrated that minority 
registration and turnout exceeded that of white voters in the 
covered State of Georgia and minority and white candidates 
receive comparable support from minority and white voters to 
such an extent that Section 5 is no longer needed to protect 
minority voters. Moreover, if problems continue to exist all 
over the country, Mr. Blum testified that limiting preclearance 
requirements to just a few States and jurisdictions was not 
sound policy.
    Ms. Earls testified, among other things, that the original 
purpose of Section 5 has not been fully served. In particular, 
Ms. Earls testified that the lingering effects of past 
intentional discrimination continue today and are illustrated 
by the continued prevalence of racially polarized voting, 
cracking and packing of minority voters when drawing district 
lines, and the implementation of methods to dismantle single-
member districts. Ms. Earls emphasized that Section 5 was 
intended to remedy nearly 100 years of discrimination in which 
certain jurisdictions undermined the decision of Federal courts 
and enforcement efforts of the Federal government. Ms. Earls 
testified that the discriminatory practices of the past 
continued to be enacted by local and State governments such 
that Section 5 is still needed. In addition, Ms. Earls 
testified on the important deterrent effect that Section 5 has 
on preventing discriminatory voting changes from coming to 
fruition.
    Ms. Perales testified, among other things, on the 
importance of Section 5 in Texas and other parts of the 
Southwest. Ms. Perales presented testimony on the history of 
discrimination experienced by Latinos in Texas and the 
Southwest, particularly at the local level. Ms. Perales 
testified that since 1975, there have been 196 objections 
interposed by the Department of Justice in Texas. Most of the 
objections were to voting changes enacted at the local level. 
Ms. Perales also testified on the impact that the 2003 Supreme 
Court decision in Georgia v. Ashcroft had on the ability of 
Section 5 to protect minority voters. In particular, Ms. 
Perales testified that the existence of racially polarized in 
elections makes it virtually impossible for minority voters to 
have any sort of influence on the outcome of an election or the 
representative who is ultimately elected.

Oversight hearing on the ``Voting Rights Act: The Continuing Need for 
        Section 5''

    On October 25, 2005, the Subcommittee on the Constitution 
held the fourth of ten oversight hearings on the Voting Rights 
Act of 1965 (VRA). The hearing focused on Section 5's 
preclearance requirement, including examining the standard for 
evaluating Section 5 preclearance submissions as set forth by 
the Supreme Court in Beer v. United States. Testifying at the 
hearing was Mr. Laughlin McDonald, Executive Director, Voting 
Rights Project, ACLU; Mr. Robert Hunter, Jr., Voting Rights 
Attorney and Former Chairman of the North Carolina Board of 
Elections, Hunter, Higgins, Elum, and Benjamin, PLLC; Mr. 
Ronald Keith Gaddie, Professor of Political Science, University 
of Oklahoma; and Dr. Richard Engstrom, Professor of Political 
Science and African Studies, University of New Orleans.
    Mr. McDonald presented testimony on the continued need for 
Section 5. Mr. McDonald indicated that there is abundant 
modern-day evidence demonstrating that Section 5 is still 
needed. Mr. McDonald testified that the need for Section 5 was 
most demonstrably found in Indian Country, where there are 
hundreds of examples of efforts to discriminate against Native 
Americans in the electoral process.
    Mr. Hunter testified that in his experience as a voting 
rights practitioner three recent Supreme Court decisions, 
Bossier I, Bossier II, and Georgia v. Ashcroft, had modified 
the purpose and effect prongs of Section 5. Mr. Hunter 
indicated that Congress needed to focus on the communities that 
had been historically disenfranchised and the impact that such 
discriminatory voting laws would have on these voters if 
Section 5 was not reauthorized.
    Professor Gaddie testified on the research that he had been 
conducting with his colleague Professor Charles Bullock on 
behalf of American Enterprise Institute (AEI). Professor Gaddie 
indicated that his study demonstrated significant progress 
among minority participants in the political process. This 
progress is revealed in increased registration and turnout 
rates among racial and language minority citizens. Professor 
Gaddie testified that these increased rates of participation 
suggest that Section 5 may have outlived its usefulness.
    Dr. Engstrom testified that Section 5 is a fundamental 
protection against minority vote dilution in covered 
jurisdictions. Dr. Engstrom described vote dilution as a second 
generation barrier to voting experienced by minorities. (First 
generation barriers involve those techniques and practices that 
directly prevent minorities from casting ballots). Dr. Engstrom 
testified that vote dilution is impacted by racially polarized 
voting, which is a prominent feature of elections in the South. 
Dr. Engstrom testified that racially polarized voting continues 
today, thus demonstrating the continued need for Section 5.

Oversight hearing on ``Pain of the Unborn''

    On November 1, 2005, the Subcommittee on the Constitution 
held an oversight hearing on ``Pain of the Unborn.'' The 
witnesses included: Dr. Sunny Anand, Director, Pain 
Neurobiology Laboratory, Arkansas Children's Hospital Research 
Institute, and Professor of Pediatrics, Anesthesiology, 
Pharmacology, and Neurobiology, University of Arkansas College 
of Medicine; Dr. Jean Wright, Professor and Chair of 
Pediatrics, Mercer School of Medicine; Dr. Arthur Caplan, 
Director, Center for Bioethics, and Chair, Department of 
Medical Ethics, University of Pennsylvania; Ms. Teresa S. 
Collett, Professor of Law, University of St. Thomas School of 
Law.
    Dr. Sunny Anand testified, among other things, that a study 
concluding that fetal perception of pain is unlikely before 29 
to 30 weeks of human gestation was flawed ``because [the 
authors] ignore a large body of research related to pain 
processing in the brain, present a faulty scientific rationale 
and use inconsistent methodology for their systematic review.''
    Dr. Jean Wright testified, among other things, that 
viability has been pushed back to 23-24 weeks for some infants, 
that there is a disconnect between the treatment of pain in the 
neonate and pain in the fetus, and that treating the mother for 
pain is not enough for the child.
    Dr. Arthur Caplan testified, among other things, that there 
``is an enormous body of evidence which shows that the 
presumption of medical consensus does not exist about the 
question of when a fetus becomes pain-capable'' and that 
``mandating the specific nature of what must be communicated to 
a woman considering an abortion or any other medical procedure 
is an unwise interference with the practice of medicine by 
Congress.''
    Professor Teresa S. Collett testified, among other things, 
that the issue of at what point the unborn experience pain is 
an important one that should inform medical practice and that 
the most recent abortion textbook for medical schools advises 
that women seeking abortions be given information about fetal 
pain.

Oversight hearing on the ``Voting Rights Act: Section 5--Preclearance 
        Standards''

    On November 1, 2005, the Subcommittee on the Constitution 
held the fifth of ten oversight hearings on the Voting Rights 
Act. The hearing continued to focus on Section 5's preclearance 
requirement that a voting change submission can only be 
precleared if it does not have the purpose or effect of denying 
or abridging a citizen's right to vote on account of race, 
color, or language minority status, with a particular focus on 
the impact of the Supreme Court's decision in Reno v. Bossier 
Parish (Bossier II). Witnesses presenting testimony to the 
Subcommittee included: Professor Mark Posner, Adjunct 
Professor, American University, Washington College of Law, and 
Former attorney, Civil Rights Division, Department of Justice; 
Ms. Brenda Wright, Managing Attorney, National Voting Rights 
Institute; Mr. Roger Clegg, Vice President and General Counsel, 
Center for Equal Opportunity and Former Assistant to the 
Solicitor General, Department of Justice; and Mr. Jerome A. 
Gray, State Field Director, Alabama Democratic Conference.
    Professor Posner presented testimony describing the need 
for Congress to reauthorize Section 5 as well as legislatively 
reverse the interpretation of Section 5's purpose prong by the 
Supreme Court in Bossier II as part of its reauthorization 
effort. Professor Posner indicated that Section 5's purpose 
prong had been consistently interpreted as preventing changes 
made with a discriminatory purpose from being precleared under 
Section 5 for nearly 34 years. According to Professor Posner, 
the Supreme Court in Bossier II misconstrued the purpose prong 
allowing almost any voting change made with a racial motive to 
be precleared, contrary to Congress's original intent.
    Ms. Wright testified, among other things, that a successful 
reauthorization must include restoring Section 5 to prevent 
voting changes made with a discriminatory purpose from being 
precleared. Ms. Wright testified that through the 1970s and 
1980s it was clear that the purpose and effect prongs contained 
in Section 5 were independent of each other until the Bossier 
II case. Under the current Supreme Court interpretation, Ms. 
Wright testified that those jurisdictions that had never 
adopted a majority-minority district were free to continue to 
intentionally draw minorities out of a redistricting map. These 
actions, Ms. Wright testified, are contrary to the original 
purpose of Section 5.
    Mr. Clegg testified, among other things, that the Bossier 
II decision is correct and that in the larger discussion of 
reauthorization, Section 5 and the other expiring provisions 
should not be reauthorized. Mr. Clegg testified that if 
Congress decides to overturn Bossier II it runs the risk of 
having Section 5 struck down as unconstitutional, as Justice 
Scalia alluded in his Bossier II opinion.
    Mr. Gray testified, among other things, on the impact that 
the VRA has had on the State of Alabama. In particular, Mr. 
Gray testified to the benefits of Section 5 in deterring 
jurisdictions from enacting discriminatory voting changes. Mr. 
Gray testified that Section 5's preclearance requirement has 
worked to integrate minority voters more fully into the voting 
process, as covered jurisdictions seek the input of minority 
voters early in the process to ensure that voting changes are 
not retrogressive.

Oversight hearing on the ``Voting Rights Act: Section 203--Bilingual 
        Election Requirements''

    On November 8, 2005, the Subcommittee on the Constitution 
held the sixth of ten oversight hearings on the Voting Rights 
Act of 1965 (VRA). The hearing was the first of two examining 
the effectiveness of Section 203, the bilingual election 
assistance provisions, added to the VRA in 1975. Testifying at 
the hearing was the Honorable Bradley Schlozman, Acting 
Assistant Attorney General, Civil Rights Division, Department 
of Justice; Ms. Margaret Fung, Executive Director, Asian 
American Legal Defense and Education Fund; Ms. Linda Chavez, 
President, One Nation Indivisible, Inc.; and Ms. Rebecca Vigil-
Giron, Secretary of State, State of New Mexico.
    Assistant Attorney General Schlozman provided an overview 
of the Department of Justice's efforts to enforce Section 203's 
bilingual assistance requirements. Assistant Attorney General 
Schlozman testified that the Civil Rights Division has 
undertaken the most extensive Section 203 and Section 4(f)(4) 
enforcement effort in the history of the Department of Justice. 
Assistant Attorney General Schlozman testified that notice and 
detailed information on compliance requirements were sent by 
the Department to each of the covered jurisdictions. In 
addition, the Department initiated in-person meetings with 
officials from newly covered jurisdictions. Since 2001, the 
Department has filed more Sections 4(f) and 203 cases than were 
filed in the previous 26 years.
    Ms. Fung testified to Section 203's success, particularly 
since the 10,000 threshold was inserted into Section 203's 
coverage formula in 1992. Ms. Fung testified that Section 203's 
assistance has enabled hundreds of thousands of language 
minority citizens, particularly Asian Americans, to participate 
in the political process and was instrumental in the election 
of New York City's first Asian American city councilman and 
first Asian American Member of the New York State Assembly.
    Ms. Chavez testified, among other things, that Section 203 
should not be extended. Ms. Chavez testified that Section 203's 
requirements are wasteful, expensive, and are not widely used. 
Morever, Ms. Chavez testified that Section 203's requirements 
facilitate voter fraud. Ms. Chavez testified that many civil 
rights groups, including the U.S. Commission on Civil Rights, 
the Attorney General, and the Leadership Conference on Civil 
Rights were opposed to extending the VRA to cover Hispanic and 
other language minority citizens in 1975.
    Ms. Vigil-Giron provided testimony on the State of New 
Mexico's experience in providing bilingual election assistance 
to language minority voters. Ms. Vigil-Giron testified that 
Section 203 is the legal foundation for many Native American 
and Hispanic citizens when exercising their right to vote. 
Native Americans make up 10 percent of the total population of 
New Mexico and Hispanics make up 42 percent, many of which do 
not speak English. Ms. Vigil-Giron testified that the increased 
turnout rates among Native Americans and Hispanics would not 
have occurred if not for the VRA.

Oversight hearing on the ``Voting Rights Act: The Judicial Evolution of 
        the Retrogression Standard''

    On November 9, 2005, the Subcommittee on the Constitution 
held the seventh of ten oversight hearings on the Voting Rights 
Act of 1965 (VRA). The hearing focused on Section 5's 
preclearance requirement and the impact of the Supreme Court's 
decision in Georgia v. Ashcroft on the preclearance standard. 
Witnesses testifying before the Subcommittee included: Mr. 
Theodore Shaw, President and Director-Counsel, NAACP, Legal 
Defense and Education Fund, Inc.; Ms. Anne Lewis, voting rights 
attorney, Strickland Brockington Lewis, LLP; Georgia State 
Representative Tyrone Brooks, President, Georgia Association of 
Black Elected Officials; and Mr. Laughlin McDonald, Executive 
Director, Voting Rights Project, ACLU.
    Mr. Shaw testified, among other things, that Section 5's 
ability for minorities to elect their candidates of choice 
standard has been at the core of the VRA. Mr. Shaw testified 
that an assessment of the minority community's ability to elect 
occurs most frequently in the context of single member 
districts and racially polarized voting. Mr. Shaw testified 
that the retrogression standard set forth by the Supreme Court 
in Beer v. United States was the standard adopted by the Courts 
and Congress for the last 30 years. Mr. Shaw testified that the 
Supreme Court's decision in Georgia v. Ashcroft weakened this 
standard by allowing covered jurisdictions to make a choice 
between keeping districts where minorities can elect their 
candidate of choice or dispersing minority voters to increase 
minority influence among other candidates. Mr. Shaw testified 
that Congress needed to restore Section 5 to the standard set 
forth in Beer as part of its reauthorization efforts.
    Ms. Lewis testified, among other things, that the standard 
for preclearing voting changes was significantly weakened by 
the Supreme Court's decision in Georgia v. Ashcroft and leaves 
the standard impossible to apply.
    Mr. Brooks testified on the importance of Section 5 to 
minority voters in Georgia and the continued need for Section 5 
as long as racially polarized voting plagues elections. Mr. 
Brooks testified on the need for States to maintain majority-
minority districts, indicating influence districts, such as 
those identified by the Supreme Court in Georgia v. Ashcroft, 
can never be a substitute for majority-minority districts.
    Mr. McDonald testified, among other things, that the 
Supreme Court in Georgia v. Ashcroft took the Section 5 
standard and turned it into a subjective and abstract standard. 
In particular, Mr. McDonald testified that the minority 
influence theory espoused by Supreme Court in Georgia v. 
Ashcroft is nothing more than a guise for diluting minority 
voting strength and the decision runs counter to Congress's 
original intent in enacting Section 5. Mr. McDonald advocated 
that any Reauthorization of Section 5 must also include 
language that restores Section 5 to its original purpose.

Oversight hearing on the ``Voting Rights Act: Section 203--Bilingual 
        Election Requirements (Part II)''

    On November 9 and 10, 2005, the Subcommittee held the 
eighth of ten oversight hearings on the Voting Rights Act of 
1965 (VRA). The hearing was the second of two hearings focusing 
on the effectiveness of Section 203, the bilingual election 
assistance provision. Testimony was taken from the following 
witnesses: Ms. Jacqueline Johnson, Executive Director, National 
Congress of American Indians; Mr. K.C. McAlpin, Executive 
Director, ProEnglish; Mr. James Tucker, Attorney, Ogletree 
Deakins, P.C., Adjunct Professor, Barrett Honors College of 
Arizona State University, Phoenix, Arizona; and Mr. Juan 
Cartagena, General Counsel, Community Service Society.
    Ms. Johnson testified, among other things, on the benefit 
of Section 203 to Indian Country over the last 31 years. Ms. 
Johnson testified that Section 203 has facilitated numerous 
enforcement filings that have worked to ensure that Native 
Americans have access to the ballot box. Ms. Johnson testified 
that in many Native communities tribal business is conducted 
exclusively in the native language. Thus, many native people, 
especially elders, need assistance when exercising their right 
to vote.
    Mr. McAlpin testified, among other things, that Section 203 
is a costly, unfunded mandate that functions as a tax on 
English-speaking Americans. Mr. McAlpin testified that Section 
203 is not necessary since naturalization laws require 
candidates to understand and speak English as part of the 
naturalization process. Moreover, Mr. McAlpin testified that 
Section 203 is an affront to the millions of English-speaking 
immigrants and undermines our national unity. Mr. McAlpin 
testified that Section 203 increases the risk of election fraud 
by facilitating the concealment of illegal activity.
    Mr. Tucker testified, among other things, that Section 203 
remains a critical provision to the VRA. Mr. Tucker testified 
to the constitutionality of Section 203 and Section 4(f)(4), 
citing the Supreme Court's decision in Katzenbach v. Morgan as 
the basis for the two Sections. In particular, Mr. Tucker 
testified that the Supreme Court, in Katzenbach, held that it 
was entirely appropriate for Congress to ``question whether a 
denial of a right being so precious and fundamental in our 
society was a necessary or appropriate means of encouraging 
persons to learn English or furthering the goal of an 
intelligent exercise of the franchise.'' Mr. Tucker further 
testified that a recent study of the jurisdictions covered by 
Section 203 revealed that the high costs of administering 
Section 203's requirements had not materialized and that most 
election officials support Section 203's requirements.
    Mr. Cartagena testified, among other things, that Section 
203 continues to be a viable and needed provision in 2005. Mr. 
Cartagena testified that the full participation of Latino-
language minority citizens has yet to be achieved. Moreover, 
Mr. Cartagena testified that jurisdictions continue to be 
unwilling to provide full assistance to language minority 
citizens, thus demonstrating the continued need for enforcement 
and oversight by the Department of Justice. Mr. Cartagena 
testified that 75% of the Latinos in the country speak a 
language other than English at home, with more than 41% 
speaking English less than very well and 23% not speaking 
English at all, thus demonstrating the need for Section 203's 
assistance.

Oversight hearing on the ``Voting Rights Act: Sections 6 and 8--The 
        Federal Examiner and Observer Program''

    On November 15, 2005, the Subcommittee on the Constitution 
held the ninth of ten oversight hearings on the Voting Rights 
Act of 1965 (VRA). The hearing focused on the effectiveness of 
Sections 6 and 8 of the VRA, the Federal examiner and Federal 
observer provisions. Testimony was taken from three witnesses 
including: Ms. Nancy Randa, Deputy Associate Director, Human 
Resources and Services, U.S. Office of Personnel Management; 
Ms. Penny Pew, Apache County Elections Director, State of 
Arizona; and Mr. Barry Weinberg, Former Deputy Chief and Acting 
Chief, Voting Section, Civil Rights Section, Department of 
Justice.
    Ms. Randa testified, among other things, on the role of OPM 
in assigning Federal examiners and observers to monitor 
elections in covered jurisdictions certified for monitoring. 
Ms. Randa testified that since 1965 OPM has assigned more than 
26,000 observers to a total of 21 States. Ms. Randa testified 
that in the last ten years more observers have been deployed to 
protect language minority citizens. Ms. Randa testified that 
observers serve as neutral monitors, witnesses who do not 
intervene but watch, listen, and record events in polling 
locations. Ms. Randa testified that no voters have been added 
to the Federal voter registration list since 1983 and no 
challenges have been made to the voter list in 30 years, 
diminishing the need for both Federal registrars and hearing 
officers.
    Ms. Pew provided testimony on the role Federal observers 
have played in elections in Apache County, Arizona. Ms. Pew 
testified that the Federal observer program has functioned as a 
check and balance in Apache County's translator program. 
Federal observers are able to witness poll workers and 
interpreters assisting voters. Observers witness the process 
and note events that occur throughout the voting process. Ms. 
Pew testified that the information relayed by Federal observers 
enables election officials to know instantaneously of 
situations that can be rectified immediately or may need 
further investigation.
    Mr. Weinberg testified, among other things, on the 
Department of Justice's role in the Federal examiner and 
observer program. Mr. Weinberg testified that the Federal 
examiner provisions are archaic, cumbersome, outdated, and no 
longer serve a purpose. Mr. Weinberg testified that Federal 
observers continue to be necessary, serving an important law 
enforcement function. Mr. Weinberg testified that Federal 
observers are the only Federal officials allowed inside polling 
locations and are able to witness events that other Federal 
officials are not. Mr. Weinberg described Federal observers as 
the eyes and ears of the Justice Department in polling 
locations and testified on the need to keep this Federal 
oversight for an additional 25 years.

Oversight of detention facilities located in Guantanamo Bay, Cuba

    Members of the House Judiciary Committee, including 
Subcommittee Chairman Chabot, Subcommittee Ranking Member 
Nadler, and Representative Gohmert, and Subcommittee counsel 
traveled to Guantanamo Bay, Cuba (GTMO) on January 16, 2006, to 
continue the Judiciary Committee's oversight responsibilities 
on the treatment of military detainees being held at GTMO. The 
trip is the third made by Members of the Judiciary Committee, 
since 2002, to review GTMO operations. Earlier bipartisan trips 
were made by Members of the Committee and counsel on May 4, 
2003, which included Subcommittee Chairman Coble and 
Representatives Schiff and Hart, and on February 8, 2002, by 
Chairman Sensenbrenner. In addition to monitoring 
interrogations and the living conditions of military detainees, 
the trip provided Members of the Judiciary Committee with an 
opportunity to discuss the impact of: (1) the June 2004 Supreme 
Court decision, Rasul v. Bush,\5\ on GTMO operations and (2) 
the Treatment of Detainees Act of 2005 included in both the 
FY06 Department of Defense Appropriations Act and National 
Defense Authorization Act of 2006.
---------------------------------------------------------------------------
    \5\ See Rasul v. Bush, 124 S. Ct. 2686 (2004).
---------------------------------------------------------------------------

Oversight hearing on ``The Scope and Myths of Roe v. Wade''

    On Thursday, March 2, 2006, the Subcommittee on the 
Constitution conducted an oversight hearing on ``The Scope and 
Myths of Roe v. Wade.'' The witnesses included: Ms. Cinny Roy, 
Founder and Director, Eve Center; Dr. Karen O'Connor, 
Professor, American University; Ms. Helen M. Alvare, Associate 
Professor of Law, Columbus School of Law, Catholic University 
of America; Ms. Kellyanne Conway, President and Chief Executive 
Officer, the polling companyTM, inc.
    Ms. Cinny Roy testified, among other things, as to myths 
surrounding elective abortion and the negative impact of 
abortion on women, who she counsels for a variety of issues, 
including pregnancy loss due to abortion.
    Ms. Kellyanne Conway testified, among other things, that 
``[t]he methodology and phraseology of public opinion polling 
on abortion should be as carefully considered as the results.'' 
She further testified that ``[i]n cases where the American 
public is given a fair chance to voice their opinions on the 
complex considerations associated with this issue, it is 
evident that most Americans do not support abortion on demand 
and the broad provisions outlined in Roe v. Wade.''
    Dr. Karen O'Connor testified, among other things, as to 
abortion regulations prior to Roe v. Wade, the constitutional 
underpinnings of Roe v. Wade, and Roe's implications for 
American women.
    Professor Helen Alvare testified, among other things, that 
Roe v. Wade has been a pernicious influence with respect to 
families generally, but especially for children. According to 
Professor Alvare, Roe championed the notion that individual 
wants are more important than the common good of the family and 
elevated the constitutional status of sexual license without 
preserving the traditional ties between sexual freedom and 
marriage or family.
    The following material was submitted for the hearing 
record: Appendix to the Testimony of Professor Helen M. Alvare: 
``Abortion in young women and subsequent mental health.'' 
Journal of Child Psychology and Psychiatry 47:1 (2006), pp 16-
24; Affidavits compiled by The Justice Foundation from women 
who have had abortions, inserted by Congressman Franks during 
the hearing; ``Confession of an Ex-Abortionist,'' Dr. Bernard 
Nathanson, inserted into the Record by Congressman King; 
Statement Submitted for the Record by Nancy Keenan, President, 
NARAL Pro-Choice America; Statement Submitted for the Record by 
Vicki Saporta, President & CEO, National Abortion Federation.

Oversight hearing on the ``Voting Rights Act: Evidence of Continued 
        Need''

    On March 8, 2006, the Subcommittee on the Constitution held 
the tenth of ten oversight hearings on the Voting Rights Act of 
1965 (VRA). The hearing focused on the evidence complied by 
outside organizations on the ongoing efforts to discriminate 
against minority voters and the continued need for the VRA for 
an additional 25 years. Testimony was taken from four witnesses 
including: the Honorable Bill Lann Lee, Chairman, National 
Commission on the Voting Rights Act; Ms. Nadine Strossen, 
President, American Civil Liberties Union and Professor of Law, 
New York Law School; Mr. Wade Henderson, Executive Director; 
Leadership Conference on Civil Rights; and the Honorable Joe 
Rogers, Commissioner, National Commission on the Voting Rights 
Act.
    Mr. Lee testified, among other things, on the evidence 
compiled by the National Commission on the Voting Rights Act 
(Commission) and the Commission's findings. Mr. Lee described 
some of the Commission's findings such as the number of 
objections interposed by the Department of Justice and the U.S. 
District Court for the District of Columbia since 1982 to more 
than 1,100 voting changes contained in more than 650 section 5 
submissions. In addition, Mr. Lee testified that covered 
jurisdictions withdrew an additional 200 submissions from 
Section 5 review since 1982.
    Ms. Strossen provided testimony on the ACLU's involvement 
in voting rights litigation since 1982. Ms. Strossen testified 
that the ACLU has brought or participated in 293 voting rights 
cases in 31 States since 1982. Ms. Strossen testified that the 
ACLU's involvement in these cases demonstrates: (1) 
discrimination is still pervasive in covered jurisdictions and 
(2) there is a continued need for the VRA for an additional 25 
years.
    Mr. Henderson provided testimony on the series of State 
reports commissioned by the LCCR investigating the 
effectiveness of the VRA over the last 25 years in Alabama, 
Alaska, Arizona, California, Florida, Georgia, Louisiana, 
Mississippi, New York, North Carolina, South Carolina, South 
Dakota, Texas, and Virginia. Mr. Henderson testified that the 
States were selected as a representative sampling, both 
geographically and demographically, of the jurisdictions 
covered in whole or in part by the VRA. Mr. Henderson testified 
that the reports released to date reveal the impact that the 
VRA has had on minority voters over the last 40 years and since 
the VRA was last renewed in 1982. Moreover, Mr. Henderson 
testified that discrimination continues to exist in these 
jurisdictions, thus demonstrating the need to continue the 
expiring provisions for an additional 25 years.
    Mr. Rogers provided testimony, among other things, on the 
work of the National Commission on the Voting Rights Act. Mr. 
Rogers' testimony supported and corroborated testimony provided 
by fellow Commissioner, Mr. Lee. Mr. Rogers provided specific 
examples from Mississippi and California to demonstrate how the 
VRA has been effective in protecting minority voters. In 
addition, Mr. Rogers provided specific examples of how Section 
203 benefits language minority voters and the role that Federal 
observers have played over the last 25 years to protect 
minority voters in polling locations.

Joint oversight hearing on ``Personal Information Acquired by the 
        Government from Information Resellers: Is There Need for 
        Improvement''

    On April 4, 2006, the Subcommittee on the Constitution held 
a joint oversight hearing with the Commercial and 
Administrative Law Subcommittee on ``Personal Information 
Acquired by the Government from Information Resellers: Is There 
Need for Improvement.'' The hearing provided GAO the 
opportunity to present the results of its year long 
investigation into the privacy practices adhered to by the 
Federal government when utilizing information obtained through 
data brokers. The GAO report was issued in response to a 
request made by Chairman Sensenbrenner, together with Ranking 
Member Conyers, Mr. Chabot, and Mr. Nadler, in April 2005 that 
GAO investigate the Federal Government's involvement and 
reliance on data as it relates to fulfilling our Federal 
Government's top priorities, such as our Nation's law 
enforcement and antiterrorism efforts, and performing other 
critical domestic functions such as effectively distributing 
benefits. Testifying at the hearing was Ms. Linda D. Koontz, 
Director, Information Management Issues, GAO; Ms. Maureen 
Cooney, Acting Chief Privacy Officer, U.S. Department of 
Homeland Security; Mr. Peter Swire, William O'Neill Professor 
of Law, Moritz College of Law, the Ohio State University, 
Visiting Senior Fellow, Center for American Progress; and Mr. 
Stuart Pratt, President and CEO, Consumer Data Industry 
Association.
    Ms. Koontz testified, among other things, on GAO's findings 
on agency and reseller privacy policies and practices, which 
GAO had evaluated against the Fair Information Practices 
(FIPs), a set of widely accepted principles for protecting the 
privacy and security of personal information. Ms. Koontz 
testified that the FIPs are the basis of privacy laws in many 
countries and are the foundation of the Privacy Act and are not 
legally binding either on Federal agencies or resellers. Ms. 
Koontz testified that GAO found some inconsistencies among 
agencies. While agencies did take steps to address the privacy 
and security of the information acquired from resellers, their 
handling of this information did not always fully reflect the 
FIPs.
    Ms. Cooney testified, among other things, on the steps 
taken by the Department of Homeland Security (DHS) to protect 
the privacy of personal information. Ms. Cooney testified that 
the primary oversight mechanism used by the DHS Privacy Office 
to ensure the protection of personal information is the privacy 
impact assessment (PIA). Ms. Cooney testified on the important 
role PIAs play in demonstrating the transparency of the 
Department's activities. Ms. Cooney testified that PIAs compel 
the consideration of privacy issues when implementing 
regulations or new programs, including the use of information 
obtained from commercial data brokers.
    Professor Swire testified, among other things, that the 
Federal government is still learning how to best incorporate 
private databases into the activities of the Federal 
government. In particular, Mr. Swire testified that while DHS 
has set up a structure to protect the privacy of information 
acquired through commercial data brokers, there are large gaps 
in oversight throughout the executive branch, which use 
information acquired through commercial data brokers. Professor 
Swire recommended that a study be conducted by the National 
Academy of Sciences to look into how privacy and information 
sharing can coexist, especially as information becomes 
increasingly necessary to fight terrorism.
    Mr. Pratt testified, among other things, on the concerns 
that the commercial data broker industry has with the GAO 
report. In particular, Mr. Pratt testified that the report does 
not adequately describe the value and effectiveness of the 
information provided by commercial data brokers to Federal 
agencies. Moreover, Mr. Pratt testified that the report does 
not adequately describe the current legal structure in place to 
regulate commercial data brokers to ensure that only accurate 
and needed information is obtained and used by the Federal 
government.
    The information obtained during the April 4, 2006, hearing 
led Mr. Chabot, together with Mr. Nadler, Mr. Cannon, and Mr. 
Watt, to request that GAO conduct a follow-up investigation 
reviewing the effectiveness of the DHS privacy office in 
protecting privacy issues and whether it is fulfilling its 
statutory mandate. This request was made of GAO on May 25, 
2006, with the report expected to be completed sometime in 
2007.

Oversight hearing on ``The Constitution and the Line Item Veto''

    The Subcommittee on the Constitution conducted an oversight 
hearing on ``The Constitution and the Line Item Veto'' on April 
27, 2006. The Subcommittee heard testimony from Representative 
Paul Ryan (WI-1), sponsor of H.R. 4890, the ``Legislative Line 
Item Veto Act of 2006''; Representative Mark R. Kennedy (MN-6), 
sponsor of H.J. Res. 71, a constitutional amendment providing 
the president with a line item veto; Ms. Cristina Martin 
Firvida, Senior Counsel at the National Women's Law Center; and 
Mr. Charles J. Cooper, Partner, Coopers & Kirk.
    The purpose of the hearing was to explore how a line item 
veto, whether statutory or a constitutional amendment, 
interacts with the constitutionally defined separation of 
powers.
    Representative Paul Ryan testified that the amount of pork 
barrel spending by Congress has increased annually. He further 
testified that one way to address the issue is to give the 
President the power to rescind certain line items of spending 
through a line item veto. However, since the original Line Item 
Veto Act \6\ was held unconstitutional by the United States 
Supreme Court in Clinton v. City of New York \7\, 
Representative Ryan introduced a bill that would give the 
president enhanced rescission authority, as opposed to a true 
line item veto. Representative Ryan testified that his bill 
would give the President the ability to put a temporary hold on 
spending that he found wasteful and to send a rescission 
request for that spending to Congress, which Congress would 
then have to act on in an expedited fashion. He further 
testified that he felt that H.R. 4890 was constitutional 
because any such rescission request would have to be passed by 
both Houses of Congress and signed by the president, pursuant 
to the Presentment Clause. However, he further testified that 
he would be willing to work with Members to address any 
separation of powers or other constitutional concerns that they 
may have with the bill.
---------------------------------------------------------------------------
    \6\ Pub. L. 104-130 (1996).
    \7\ 524 U.S. 417, 439 (1998).
---------------------------------------------------------------------------
    Representative Kennedy testified that he was supportive of 
Representative Ryan's efforts to address Congress' profligate 
spending through a legislative line item veto. However, he 
testified that his measure, H.J. Res. 71, was certain to be 
constitutional because it would be a constitutional amendment. 
Further, his amendment would allow the President to cancel any 
item of direct spending, subject to Congress' ability to 
override such a veto. He testified that this approach would be 
an even stronger deterrent on Congress' wasteful spending.
    Ms. Firvida testified that she had serious constitutional 
concerns regarding H.R. 4890. While she acknowledged that H.R. 
4890 may have addressed the issues raised by the Supreme Court 
in Clinton, she stated that the bill would potentially shift 
the balance of powers between the legislative and executive 
branches in a way that the Supreme Court might find 
problematic. Specifically, she raised the possibility that, as 
introduced, nothing in H.R. 4890 prevented the President from 
filing sequential sequestrations of items of spending in an 
bill, thereby allowing a President to subvert Congress' intent 
by not spending funds even if Congress had specifically 
rejected the president's rescission request. She further 
testified that line item vetoes are not effective tools against 
wasteful spending because they apply only to a small portion of 
the federal budget.
    Mr. Cooper testified that as the lead counsel in the 
constitutional challenge on Line Item Veto Act, it was his view 
that H.R. 4890 was constitutional. Specifically, he thought 
that the bill addressed the presentment clause challenges that 
proved problematic with the earlier bill. He further testified 
that the concerns raised by Ms. Firvida could be addressed 
legislatively, and that any presidential abuse of the 
legislative line item veto could be attacked in a court on as 
case-by-case basis as opposed to holding the whole statute 
unconstitutional.
    The House of Representatives passed H.R. 4890 by a vote of 
247 to 172 on June 22, 2006.

Oversight hearing on ``The Implementation of the Crime Victims'' Rights 
        Provisions of the Justice for All Act''

    On June 21, 2006, the Subcommittee on the Constitution 
conducted an oversight hearing on the Implementation of the 
Crime Victims Rights Provisions of the Justice for All Act. The 
following witnesses appeared at the hearing: Mrs. Debra 
Culberson, Victim, Blanchester, Ohio; Ms. Mary Lou Leary, 
Executive Director of the National Center for Victims of Crime; 
Professor Julie Goldscheid, Associate Professor at City 
University of New York Law School; and Ms. Margaret Garvin, 
Director of Programs for the National Crime Victim Law 
Institute.
    The purpose of the hearing was to explore how the crime 
victims's rights provisions of the Justice for All Act,\8\ and 
specifically the provisions of the Crime Victims Rights Act 
(CVRA), are being implemented by the Department of Justice and 
the courts. The hearing explored the effectiveness of the 
enforcement provisions, specifically the writ of mandamus, in 
guaranteeing crime victims' rights. The hearing also explored 
whether there have been any difficulties in enforcing any of 
the enumerated rights in the bill. Finally, the hearing 
addressed the implementation of the new regulations that the 
Department of Justice put in place to ensure compliance with 
the CVRA.
---------------------------------------------------------------------------
    \8\ Pub. L. 108-711 (2004).
---------------------------------------------------------------------------
    Mrs. Culberson testified that her daughter, Carrie, was 
murdered by an ex-boyfriend, and that her body was never 
recovered. Mrs. Culberson spoke of the difficulty of not being 
able to bury her daughter and wondering whether her daughter's 
remains are located on a shelf in a coroner's office. She 
testified that she had be working with Representative Chabot to 
create or enhance programs to identify unidentified human 
remains, including a provision in the Justice for All Act.
    Ms. Leary testified that the CVRA greatly enhanced the role 
of victims in the federal criminal justice system. According to 
Ms. Leary, one member of the National Center for Victims of 
Crime told her that ``in her more than 30 years of experience 
in law enforcement and victim services, `the Justice for All 
Act is . . . the best piece of legislation to help crime 
victims.' '' She testified that challenges still remain for 
victims and that Congress should work to ensure that the crime 
victims notification system works in a timely manner, and that 
Congress should appropriate all funds that it has authorized in 
the Justice for All Act and other victims rights legislation.
    Professor Goldscheid testified that the Justice for All Act 
was an important piece of victims rights legislation. However, 
she urged Congress not to neglect other victims provisions, 
such as the Victims of Crime Act and the Violence Against Women 
Act. Like Ms. Leary, she urged Congress to fully appropriate 
the funds authorized under the Justice for All Act, the Victims 
of Crime Act, and the Violence Against Women Act.
    Ms. Garvin testified that the Crime Victims Rights Act gave 
victims, for the first time, an enforceable set of rights in 
federal court. Ms. Garvin said, however, that some judges have 
been reticent to enforce the provisions of the Act. 
Specifically, she referred to a judge in the Northern District 
of Alabama who had referred to the Act as the ``new, mushy 
'feel good' statute.'' \9\ On the other hand, the United States 
Court of Appeals for the Ninth Circuit had recently held that 
victims have an affirmative right to speak in open court at 
sentencing.\10\ She testified that the Ninth Circuit had also 
recently adopted new rules to ensure that victims received 
expedited appellate consideration of their claims as 
contemplated under the Act.
---------------------------------------------------------------------------
    \9\ United States v. Holland, 380 F.Supp.2d 1264, 1278 (N.D. Ala. 
2005).
    \10\ Kenna v. United States District Court for the Central District 
of California, 435 F.3d 1011 (9th Cir. 2006).
---------------------------------------------------------------------------

Oversight hearing on ``The Americans with Disabilities Act: Sixteen 
        Years Later''

    On September 13, 2006, the Subcommittee on the Constitution 
held an oversight hearing that examined the progress made by 
disabled Americans under the Americans with Disabilities Act of 
2006 over the last sixteen years, the impact that certain 
Supreme Court decisions has had on the interpretation of the 
ADA's requirements, the enforcement record of the Department of 
Justice and the Equal Employment Opportunity Commission (EEOC), 
the unintended impact that the ADA has had on businesses, and 
other evolving issues such as internet accessibility 
requirements. Testifying at the hearing was the Honorable Tony 
Coelho, former Member of the House of Representatives; the 
Honorable Naomi C. Earp, Chair, Equal Employment Opportunity 
Commission; Mr. Harry Horner, small business owner, Julian, 
California; and Mr. Robert. L. Burgdorf, ADA legal advocate. In 
addition to the testimony presented during the hearing, written 
follow-up questions were submitted to each of the witnesses on 
September 21, 2006.
    Mr. Coelho testified, among other things, on the purpose of 
the ADA, the progress made by disabled Americans under the ADA 
over the last 16 years, as well as the limitations that have 
been placed on the ADA's reach by the Supreme Court.
    Ms. Earp testified, among other things, on the enforcement 
efforts of the EEOC, the guidance provided to private 
employers, and technical assistance issued to both affected 
individuals and covered entities regarding the ADA's 
protections and requirements.
    Mr. Horner testified, among other things, on his 
experiences as a small business owner subject to the ADA's 
requirements. In particular, Mr. Horner described to the 
Committee the uncertainty many businesses face with respect to 
what is required under the ADA and the lack of guidance 
provided.
    Mr. Burgdorf testified, among other things, on the impact 
that the ADA has had on disabled citizens, the impact that 
certain Supreme Court decisions have had on the ADA, and 
amendments needed to the ADA to restore it to its full 
strength.