Daily Floor Briefing

Friday, September 29, 2006
The House will meet 9:00 AM for legislative business.

One Minutes (5 per side)

H.Res. 1054 - Rule providing for consideration of Conference Report on H.R. 5441, S. 3930 and H.R. 4772

Bills Subject to a Rule (2 bills)
H.R. 4772 –
Private Property Rights Implementation Act of 2006
S. 3930 –
Military Commissions Act of 2006 

H.Res. 1053 -
Rule providing for same day consideration of any resolution reported on the legislative day of September 29, 2006

Conference Report (1 report)
Conference Report on H.R. 5441 –
Department of Homeland Security Appropriations Act for Fiscal Year 2007

Suspensions (6)
H.Res. 1028 –
Supporting the goals and ideals of Red Ribbon Week
H.Res. –
Requests the Department of Health and Human Services to outline the federal government’s responsibilities, taking into account the responsibilities and actions of the state and local governments, to support a program for medically monitoring and treating all individuals who were exposed to the toxins of Ground Zero on 9/11
H.R. 6228 –
Wright Amendment Reform Act of 2006
H.R. 6233 –
To amend the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users to make technical corrections, and for other purposes
H.R. 6203 –
To provide for Federal energy research, development, demonstration, and commercial application activities, and for other purposes
S. 3728 –
North Korea Nonproliferation Act of 2006  

Special Orders
Host: TBD
Republicans have the FIRST HOUR

*Conference Reports may be brought up at any time.

*Motions to go to Conference should they become available.

*Possible Motions to Instruct Conferees.

Bills Subject to a Rule (2 bills)

H.R. 4772
Private Property Rights Implementation Act of 2006

Floor Situation

The House is scheduled to consider H.R. 4772, pursuant to a rule, on Friday, September 29, 2006. 

On Wednesday, September 27, 2006, the Rules Committee granted a closed rule that:

Summary

The Private Property Rights Implementation Act of 2005 amends the federal judicial code to provide that, whenever a district court exercises jurisdiction in civil rights cases in which the operative facts concern the uses of real property, it shall not abstain from exercising such jurisdiction, or relinquish it to a state court, if the party seeking redress does not allege a violation of a state law, right, or privilege, and no parallel proceeding is pending in state court that arises out of the same operative facts as the district court proceeding.

The bill declares that in an action in which operative facts concern the uses of real property, the district court shall exercise jurisdiction even if the party seeking redress does not pursue judicial remedies provided by a state or territory. The legislation provides for referral of an unsettled question of state law to the state's highest appellate court. Prohibits the district court from certifying a question of state law unless it is necessary to resolve the merits of the injured party's federal claim, and such question is patently unclear.

H.R. 4772 declares that any claim or action to redress the deprivation of a property right or privilege secured by the Constitution shall be ripe for adjudication by the district courts upon a final decision rendered by any person acting under color of any law, regulation, custom, or usage of any state or U.S. territory that causes actual and concrete injury to the party seeking redress.

The Private Property Rights Implementation Act of 2005 declares that any claim founded upon a property right or privilege secured by the Constitution, but allegedly infringed or taken by the United States, shall be ripe for adjudication upon a final decision rendered by the United States which causes actual and concrete injury to the party seeking redress.

The bill amends the Revised Statutes of the United States with respect to certain Constitutional property rights claims, and requires a federal agency, whenever it takes action limiting the use of private property that may be affected by the amendments made by this Act, to give notice to the owners of that property explaining their rights and the procedures for obtaining any compensation that may be due to them under such amendments.

Section-by-Section Breakdown

Section 2. Jurisdiction in Civil Rights Cases Concerning Real Property.

This section prevents 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.

This provision addresses abstention, the legal principle under which courts relinquish their jurisdiction over a case and refuse to hear it. Abstention is one of the primary jurisdictional hurdles that currently prevent nearly all property owners from having their federal Fifth Amendment taking claims heard in federal court. This provision of H.R. 4772 states that abstention can not be exercised by a federal court in a takings case where no state law claim is alleged, and where there is no pending state court proceeding addressing the same claims. Moreover, to address any concerns about federal courts’ entangling themselves with state law issues, this section allows a federal judge to have unresolved questions concerning state law answered by the state courts through a certification procedure if doing so is factually necessary to resolve the federal constitutional property rights claim. This ensures that federal courts do not decide state law issues, while ensuring property owners have access to federal court to defend their Fifth Amendment rights.

This section also allows a property owner whose constitutional rights may have been violated the same access to federal court that other claimants alleging a violation of their constitutional rights (such as freedom of speech and religion) have. Accordingly, under this section, a property owner raising solely federal claims can have his or her case decided in federal court without first pursuing a litigation detour in state court on the same issues. If an individual claims that his constitutional right to free speech was violated, he can take that claim directly to federal court. The same goes for alleged infringements of other constitutional rights, like the rights to privacy and the free exercise of religion, and all such claims can be brought immediately in federal court. However, property owners with a Fifth Amendment claim have been treated differently and unfairly by courts. Unlike other constitutional cases, the federal courts require that property owners with takings and due process claims litigate their case in state court first. This unfair situation derives from the Supreme Court’s Williamson County (1985) decision, which the lower federal courts have interpreted as requiring property owners to pursue, and exhaust, all available remedies for just compensation in state court, before the property owner can file suit in federal court on a Fifth Amendment claim. Moreover, the Supreme Court’s decision in San Remo (2005)
confirmed that once a takings case is brought to state court and decided there, the property owner is forever
precluded from a review of the case in federal court, thereby placing property owners who want to file a
constitutional takings claim in federal court in an untenable Catch-22.

Section two of the bill also clarifies when a constitutional takings claim is “ripe” and therefore ready for federal adjudication. Current case law requires, among other factors, a “final decision” to be rendered before a constitutional takings claim is ripe, because exactly what a “final decision” is is unclear under current law. Under the terms of the bill, a final agency decision exists after a property owner goes through three steps: (1) the property owner submits and is denied a “meaningful application” to use property that is consistent with local land use and zoning requirements; (2) the property owner then applies for but is denied a waiver from applicable land use requirements that caused the initial application to be rejected; and (3) after the waiver is denied, the property owner then pursues but is denied an administrative appeal on the waiver. Therefore, 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. Finally, section two includes an explanation of “futility.” This provision reflects current case law of the Supreme Court and states that a property owner shall not be required to apply for an appeal or waiver if no such appeal or waiver is available, if the appeal or waiver cannot provide the relief requested, or if the application would be futile.

Section 3. United States as a Defendant.

This section closely mirrors section 2 but applies to takings claims against the United States. This section applies only to suits against the federal government involving $10,000 or less. Under federal law, these cases are tried in federal district court.

Section 4. Jurisdiction of Court of Federal Claims.

Section 4 is identical to section 3, except it applies to suits against the federal government involving more than $10,000. Under federal law, these cases are heard in the Court of Federal Claims.

Section 5. Clarification for Certain Constitutional Property Rights Claims.

Section 5 clarifies the rights of property owners raising certain types of constitutional claims.

Subsection 1 of Section 5 clarifies 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. This would apply to all kinds of exactions, regardless of whether the exaction stems from a legislative or regulatory requirement.

 Property owners and business owners may constitutionally be required to cover the government’s costs that areincurred due to development or expansion of a business. For example, exactions may be imposed on developers to pay for expanding schools to accommodate children who will be living in the new development. Also, a business owner who is seeking permission to expand the business may be required to pay for the costs of installing a stop light if the expansion will result in an increase in traffic, and the increase in traffic merits a stop light. However, sometimes the conditions imposed on a development plan amount to nothing more than
extortion. Occasionally, a government will try to palm-off on a property owner a condition for approval that has nothing to do with the project at hand or has no relationship to the extent of the project’s impact. For example, a developer cannot be required to build a new school for children who already live in the town and likewise should not be required to pay for a road that will not be used by residents of the subdivision under construction, and the business owner should not be required to build a library or fund art exhibits in exchange for receiving approval to expand her store. Property owners should have the right in federal court to defend themselves against unreasonable exactions or impact fees that amount to extortion. The Supreme Court in the Nollan (1987) and Dolan (1994) cases affirmed these principles, but this subsection clarifies that these principles apply to both regulatory and legislatively-imposed exactions, and extortionate conditions in any form, whether they encompass the compelled give-away of land, the payment of disproportionate fees, or some other demanded condition that has no nexus to the project or its impact on public resources.

Subsection 2 of Section 5 clarifies 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. If a government approves subdividing a property into lots, the property owner is often required to pay higher property taxes on each of the newly-created lots. On occasion, the government will later impose restrictions on some of the lots that deprive the property owner of all use of that particular lot. In challenging such an action as an unconstitutional taking, courts frequently look at the entire swath of owned property. In doing so, the courts almost always rule that as long as the property owner can still develop some of the lots in a larger subdivision, it is not a taking. In this scenario, the property owner is now saddled with unusable lots on which he or she is paying a higher property tax burden. It is unjust for cities to both receive the higher tax revenue on individual lots and also deny the property owner the use of that lot. If the government wants to receive the monetary benefit of taxing each individual lot as a separate unit, then it should also have the responsibility of paying compensation when it takes each individual lot and renders it unusable by regulation. The proper remedy is for the courts to look at each individual lot rather than the entire subdivision, and that is what this section of H.R. 4772 requires. This means that a property owner may have a valid constitutional takings claim if any single lot is rendered unusable due to government actions.

Subsection 3 of Section 5 clarifies that the standard for due process claims in a takings case is an “arbitrary and capricious” standard. This section of H.R. 4772 provides hat the appropriate question in a due process case in land use matters is whether the government had no rational basis for its decision and it made an “arbitrary and capricious” decision. (Proving that a government made an arbitrary and capricious decision on a land use matter remains an extremely high standard, and only a small number of land use cases will meet it.)

Section 6. Duty of Notice to Owners.
This section requires a federal agency to provide notice to property owners explaining their rights and the procedures for obtaining any compensation that may be due to them whenever that agency takes an action impacting their private property.

Section 7. Severability and Effective Date.

This section makes the provisions of this act severable should any provision be found unconstitutional. This section also provides that the amendments made by this act become effective when it is signed into law.


Background

On March 16, 2000, the House passed H.R. 2372 - Private Property Rights Implementation Act of 2000, by a recorded vote of 226 - 182 (Roll no. 55). This legislation is substantially similar to H.R. 4772.  

Under current law, property owners are now blocked from raising a federal Fifth Amendment takings claim in federal court. The Supreme Court’s decision in Williamson County v. Hamilton Bank, 473 U.S. 172 (1985), requires property owners to pursue, and exhaust, all available remedies for just compensation in state court before the property owner can file suit in federal court under the Fifth Amendment. In San Remo Hotel v. City and County of San Francisco, 125 S.Ct. 2491 (2005), the Supreme Court recently confirmed and did not modify prior lower court case law that held that once a property owner tries their case in state court, and loses, the doctrines of res judicata and claim preclusion allow federal courts to dismiss the claims on the grounds they were already decided by the state court. The combination of these two rules means that those with federal property rights claims are effectively shut out of federal court on their federal takings claims, setting them unfairly apart from those asserting any other kind of federal right, such as First Amendment free speech and freedom of religion rights, who nearly universally enjoy the right to have their federal claims heard in federal court in the first instance.

Legislative History

H.R. 4772 was introduced by Rep. Chabot (OH) on February 16, 2005. The bill was ordered to be reported from the Judiciary Committee, by voice vote, on July 12, 2006.  House Report 109-658 was filed on September 14, 2006.

On Monday, September 25, 2006, H.R. 4772 was considered by the House under suspension of the rules. On Tuesday, September 26, 2006, the bill failed by a recorded vote of 234-172 (Roll no. 447).

For additional information or questions, please contact the Judiciary Committee at 5-3951.

S. 3930
Military Commissions Act of 2006

Floor Situation

The House is scheduled to consider S. 3930, pursuant to a rule, on Friday, September 29, 2006. 

On Thursday, September 28, 2006, the Rules Committee granted a closed rule that:

Summary

A summary will be made available on gop.gov.

Legislative History

S.3930 was introduced by Sen. McConnell (KY) on September 22, 2006.

For additional information or questions, please contact the House Armed Services Committee at 5-4151.

Conference Report (1 report)

H.R. 5441
Department of Homeland Security Appropriations Act for Fiscal Year 2007 Conference Report
          

Floor Situation

The House is scheduled to consider the Conference Report to H.R. 5441 , pursuant to a rule, on Friday, September 29, 2006.

On Thursday, September 28, 2006 the Rules Committee granted a closed rule that:

Summary

The conference agreement provides $34.8 billion for operations and activities of the Department of Homeland Security (DHS) in fiscal year 2007, an increase of $2.3 billion above fiscal year 2006 and $2.7 billion above the President’s request (includes $1.8 in emergency spending).

Border Security and Immigration Reform

The agreement provides $21.3 billion for border protection, immigration enforcement, and related activities, +$2.1 billion over FY 2006. This includes $5.2 billion for the Secure Border Initiative. Highlights include:

- $2.27 billion for border patrol, adding 1,500 new Border Patrol agents, for a total of 14,800;
- $1.2 billion for border fencing, vehicle barriers, technology and infrastructure;
- $4.2 billion for Immigration and Customs Enforcement (ICE);
- $3.1 billion for the Coast Guard’s homeland security missions;
- $1.38 billion for ICE custody operations, adding 6,700 detention beds, for a total of 27,500;
- $28.2 million to assist state and local efforts to enforce immigration law;
- $238 million for transportation and removal of undocumented aliens;
- $600 million for Air and Marine Operations for border and airspace security;
- $183 million for a total of 75 fugitive operations teams nation-wide, an increase of 23;
- $137 million for the Criminal Alien Program;
- $44 million for Alternatives to Detention;
- $362 million for the US-VISIT program; and
- $135 million to support immigration verification systems.

Includes Senate provision criminalizing the creation of tunnels to illegally cross U.S. borders. Provision is identical to legislation which passed the House unanimously last week.

Port, Container, and Cargo Security

The agreement provides $4.34 billion, +$600 million over FY 2006. Performance requirements mandate a strategy to double the amount of cargo currently inspected, screen 100% of cargo through the Automated Targeting System, and establish minimum security standards for cargo containers. The agreement further requires DHS to maintain a 100% manifest review rate at all CSI ports; a 100% validation rate of all C-TPAT participants; and doubling the amount of cargo entering the U.S. screened for radiation. Highlights include:

- $2.05 billion for Coast Guard port and waterway security operations;
- $1.435 billion for CBP cargo inspection and trade operations, including 450 new CBP officers;
- $139 million for Container Security Initiative, expanding the program to 58 foreign seaports;
- $241 million for non-intrusive inspection equipment;
- $55 million for C-TPAT, supporting 100% validation of over 6,070 certified partners;
- $178 million for radiation portal monitors;
- $15 million to increase port facility and vessel inspections domestically and overseas;
- $210 million for port security grants;
- $23 million for Science & Technology’s Cargo Security Program.

Funding for State and Local First Responders

The agreement provides $3.4 billion for first responders, including grants to high threat areas, firefighters, and emergency management. Since September 11th, 2001, and including funds in this agreement, $37.6 billion has been provided to first responders – including terrorism prevention and preparedness, general law enforcement, firefighter assistance, airport security, seaport security, and public health preparedness. The agreement maintains current law for all formula grants. Highlights include:

- $1.229 billion for high risk area grants, including $770 million for urban area grants, $175 million for rail security, $210 million for port security, and $74 million for other infrastructure protection;
- $525 million for basic formula grants;
- $547 million for firefighter grants and $115 million for the SAFER program;
- $375 million for state and local law enforcement terrorism prevention grants;
- $200 million for Emergency Management Performance Grants; and
- $352 million for First Responder training, exercise, and assistance programs.

Funding for Federal Disaster Response and Implementing Katrina Lessons Learned

The agreement provides a total of $6.5 billion for the Preparedness Directorate and FEMA to prepare for and respond to any form of disaster or terrorist attack and includes funds and direction to address lessons learned from the 2005 hurricane season. Highlights include:

- $1.5 billion for Disaster Relief;
- $526 million for FEMA’s operational capability;
- $196 million for flood map modernization; and
Creates a new, independent appropriation for the Federal Coordinator for Gulf Coast Rebuilding to ensure accountability for federal rebuilding efforts in the Gulf Coast.
Includes comprehensive structural overhaul of FEMA which would elevate the status of the Director and require that the Director have extensive emergency response and crisis management experience, prevent the diversion of FEMA funds to other agencies, require better and clearer coordination between federal, state and local emergency preparedness entities.

Protecting the Nation’s Critical Infrastructure

Highlights include:

- $69 million for critical infrastructure identification and evaluation;
- $101 million for critical infrastructure outreach and partnerships with industry;
- $481 million for the Domestic Nuclear Detection Office to coordinate global nuclear detection and tracking;
- $32 million for protective actions; and
- $496 million for biological, chemical and explosives countermeasures.
Includes a provision authorizing the Secretary of Homeland Security to regulate high-risk chemical facilities.

Transportation Security

In total, the agreement provides $6.3 billion – partially offset by fees – for TSA and Federal Air Marshals (FAMs). Highlights include:

- $2.6 billion for passenger and baggage screeners;
- $244 million for the training of airport screeners;
- $524 million to procure, install, maintain and refurbish explosive detection systems;
- $173 million to procure, install, and maintain technologies at passenger screening checkpoints;
- $55 million for air cargo;
- $13.2 million for rail security inspectors and explosive detection canines; and
- $714 million for FAMs, ensuring mission coverage on both domestic and international flights.

Supporting Traditional Missions such as Drug Interdiction, Law Enforcement, Maritime Safety, and Presidential Protection

- $2.4 billion for traditional Coast Guard operating activities, including maritime safety, drug interdiction, and fisheries, environmental, and humanitarian missions;
- $1.065 billion for the Coast Guard’s Deepwater program;
- $1.27 billion for the U.S. Secret Service including enhancement of the agency’s protective and investigative capabilities;
- $46 million for the U.S. Fire Administration; and
- $274 million for the Federal Law Enforcement Training Center.

Key Oversight Provisions and Other Items

The conferees fence $1.6 billion from spending until DHS meets certain planning and management requirements.
Includes compromise language that would allow an individual to physically transport non-narcotic prescription drugs from Canada for their personal use.
Modifies Senate provision delaying Western Hemisphere Travel Initiative until certain conditions are met.
Requires DHS to develop a comprehensive strategic plan for port, cargo and container security and the Secure Border Initiative.
Requires expenditure plans for the SBInet border security system, US-VISIT, Federal Protective Service, business transformation for CIS, explosive detection systems in airports, Customs IT systems, and overall better financial data throughout the Department - in particular Science and Technology.
The Committee directs the Preparedness Directorate and FEMA to improve its capabilities in communications, training, capabilities assessments, incident management, logistics, emergency housing, debris removal, and victim registration.

Legislative History

H.R. 5441 was introduced by Rep. Rogers (KY) on May 22, 2006. The bill was reported from the Appropriations Committee as an original measure, and House Report 109-476 was filed on May 22, 2006.

On June 6, 2006, the House passed H.R. 5411 by a recorded vote of 398-9 (Roll no. 226). The bill passed the Senate, with an amendment, on July 13 by a recorded vote of 100-0 (Record Vote Number: 203). On September 25, 2006, Conferees agreed to file conference report.

For additional information or questions, please contact the Appropriations Committee at 5-2771.

Suspensions (6 bills)

H.Res. 1028
Supporting the goals and ideals of Red Ribbon Week

Floor Situation

The House considered H.R. 1028, under suspension of the rules, on Friday, September 29, 2006.  It is debatable for 40 minutes, may not be amended, and requires a two-thirds majority vote for passage.

Summary

H.R. 1028 resolves that the House of Representatives supports the goals and ideals of Red Ribbon Week, encourages children and teens to choose to live a drug-free life, and encourages the people of the United States to promote drug-free communities and to participate in drug prevention activities to show support for healthy, productive, and drug-free lifestyles.

Legislative History

H.R. 1028 was introduced by Rep. Souder (IN) on March 1, 2005.   It was referred to the Energy and Commerce Committee, but was not considered.

For additional information or questions, please contact Rep. Souder's office at 5-4436.

H.Res_
Requests the Department of Health and Human Services to outline the federal government’s responsibilities, taking into account the responsibilities and actions of the state and local governments, to support a program for medically monitoring and treating all individuals who were exposed to the toxins of Ground Zero on 9/11
 

Floor Situation

The House considered H.Res_, under suspension of the rules, on Friday, September 29, 2006. It is debatable for 40 minutes, can not be amended, and requires a two-thirds majority vote for passage.

Summary

A summary will be made available on gop.gov

Legislative History

H.Res_ was introduced by Rep. Fossella (NY).

For additional information or questions, please contact the Energy and Commerce Committee at 5-2927.

H.R. 6228
Wright Amendment Reform Act of 2006
  

Floor Situation

The House considered H.R. 6228, under suspension of the rules, on Friday, September 29, 2006. It is debatable for 40 minutes, can not be amended, and requires a two-thirds majority vote for passage.

Summary

A summary will be made available on gop.gov

Legislative History

H.R. 6228 was introduced by Rep. Young (AK).

For additional information or questions, please contact the Transportation and Commerce Committee at 5-9446.

H.R. 6233
To amend the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users to make technical corrections, and for other purposes
   

Floor Situation

The House considered H.R. 6233, under suspension of the rules, on Friday, September 29, 2006. It is debatable for 40 minutes, can not be amended, and requires a two-thirds majority vote for passage.

Summary

A summary will be made available on gop.gov

Legislative History

H.R. 6233 was introduced by Rep. Young (AK).

For additional information or questions, please contact the Transportation and Commerce Committee at 5-9446.

H.R. 6203
To Provide for Federal energy research, development, demonstration, and commercial application activities, and for other purposes.
 

Floor Situation

The House is scheduled to consider H.R. 6203 under suspension of the rules on Tuesday, November 8, 2005. The bill is debatable for 40 minutes, may not be amended, and requires a two-thirds majority vote for passage.

Summary

H.R. 6203:

·         Accelerates development of advanced solar photovoltaic power technology by authorizing photovoltaic R&D (Section 5) and demonstrations (Section 9).
 

Legislative History

H.R. 6203 was introduced by Rep. Biggert (IL) on September 27, 2006. The bill was referred to the Science Committee but was not considered.

For additional information or questions, please contact Rep. Biggert's office at 5-3515.

S. 3728
North Korea Nonproliferation Act of 2006

Floor Situation

The House considered S. 3728, under suspension of the rules, on Friday, September 29, 2006. It is debatable for 40 minutes, can not be amended, and requires a two-thirds majority vote for passage.

Summary

S. 3728 amends the Iran and Syria Nonproliferation Act to extend the provisions of such Act to North Korea.

The bill states that in view of North Korea's determination to produce missiles, nuclear weapons, and other weapons of mass destruction and to proliferate missiles, and in view of U.N. Security Council Resolution 1695 (prevention by Member states of missile and related transfers to or from North Korea), it should be U.S. policy to impose sanctions on persons who transfer such weapons and related goods and technology to and from North Korea in the same manner as persons who transfer such items to and from Iran and Syria currently are sanctioned under U.S. law.

The measure urges all governments to comply with Resolution 1695 and to impose measures on persons involved in such proliferation that are similar to those imposed by the United States pursuant to the Iran, North Korea, and Syria Nonproliferation Act, as amended by this Act.

Legislative History

S. 3728 was introduced by Sen. Frist (TN) on July 25, 2006. The bill passed the Senate, without amendment, by unanimous consent. The bill was referred to the International Relations Committee but was not considered.

For additional information or questions, please contact the International Relations Committee at 5-5021.

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