Skip to content

By: Clark Packard and Peter O'Rourke, contributors to the Washington Examiner

Nearly 230 years after the Constitution's ratification, we are still debating the limits of power granted to the states to tax and regulate.

Should California have the power to prohibit the sale of pork from out-of-state producers if the pigs were born to sows housed in gestation stalls? Should Massachusetts have the authority to prohibit the sale of out-of-state eggs if the hens were housed in battery cages? Should Colorado have the ability to mandate that at least 20 percent of the electricity imported into the state from out-of-state producers comes from renewable sources?

Curbing potentially inhumane farming practices and promoting clean energy may be worthwhile policy goals, but under our Constitution, the states lack the power to regulate business practices beyond their borders. Congress has power over interstate commerce, making it the appropriate venue for achieving these goals.

That's not to say states lack authority to set appropriate farming practices or target climate change. Colorado, for instance, could require that all electricity producers in the Centennial State use at least 20 percent renewable sources, but it cannot condition the ability of out-of-state producers to sell electricity in the state on those renewable targets.

Perhaps the most contentious question raised in this area of law in recent years is whether states have the authority to collect tax from out-of-state businesses that have no physical presence in the state. With the rise of the internet and online commerce, states continue to try to compel out-of-state companies to report and submit sales taxes owed by residents, despite Supreme Court precedent prohibiting such requirements. The ability to compel tax collection necessarily implies the ability to audit out-of-state companies. Do we really want to empower tax auditors in one state to comb through the books of companies located in other states?

The House Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law pondered that question in a July 25 hearing on H.R. 2887, the No Regulation Without Representation Act. Sponsored by Rep. Jim Sensenbrenner, R-Wis., the bill would codify in statute that states can only tax or regulate entities engaged in interstate commerce that have a genuine physical presence within their borders. Unfortunately, this measure is needed because states continue to violate the guidelines set out by the Constitution's Commerce Clause.

The Constitution's basic construction is clear: States are free to regulate the rules of the road for wholly intrastate business practices and tax wholly intrastate transactions. Where commerce flows beyond state borders, Congress, not state legislatures or regulatory authorities, is given exclusive authority to regulate.

This framework isn't an accident. A primary weakness of the Articles of Confederation was that the federal government lacked the power to pre-empt state authority. This proved unworkable. By contrast, one of the geniuses of the constitutional framework is that the founders essentially established a free-trade zone among the states, with Congress as the ultimate arbiter of the rules of commerce between states.

Not only does this framework make practical sense—prohibiting a balkanized taxing and regulatory regime from overly burdening business practices—but it is consistent with democratic norms. In short, overzealous states may not threaten out-of-state parties who have no say in the process by which the rules are written. That's why Congress is the proper venue to resolve disputes about state efforts to tax online sales, set regulatory standards for sow pens and chicken cages, or the sale of electricity across state lines. Every adult in America can participate in the democratic process and congressional deliberations.

Sensenbrenner's bill would make a number of sensible changes that would properly balance the Constitution's respect for federalism and the Commerce Clause's demands. The bill would essentially mandate that a state can tax or regulate a person's activity when the person is physically present in a state and spells out reasonable parameters for how to define that physical presence.

If Congress fails to pass the No Regulation Without Representation Act or similar legislation, states will continue to push to tax and regulate beyond their borders. This will inevitably result in costly litigation and a confusing patchwork of rules and levies that must be sorted out in the courts. Congress can and should act to protect our existing constitutional framework.

Clark Packard is a contributor to the Washington Examiner's Beltway Confidential blog. He is an outreach manager and policy analyst for the R Street Institute. Peter O'Rourke is a summer intern with the R Street Institute.

View this piece online here.

WASHINGTON, D.C. – Today, Congressmen Jim Sensenbrenner (R-Wis.) and John Conyers (D-Mich.) sent the following letter to United States Attorney General Jeff Sessions to express concerns and objections to his proposal to expand the Department of Justice’s civil asset forfeiture program. The letter also urges AG Sessions to reconsider his newly-announced policies.

Congressman Sensenbrenner: “Expanding the federal civil asset forfeiture program is a step in the wrong direction and I urge Attorney General Sessions and his Department of Justice to reconsider. I am a supporter of criminal asset forfeiture – the seizure of property after the conviction of crime—but with civil asset forfeiture, law enforcement has a direct economic incentive to take people’s property without ever even charging them with a crime. We need to add more due process to forfeiture proceedings. Expanding forfeiture without increasing protections is, in my view, unconstitutional and wrong.”

Congressman Conyers: “I am deeply disappointed by the Justice Department’s recent move to reverse its ban on adoptive seizures.  The prior policy, which was instituted in January of 2015, greatly curtailed this practice, which provides financial incentives for law enforcement to seize the property – including the homes – of individuals who may not even be guilty of a crime.  I call on Senator Sessions to withdraw the new policy, which is contrary to the growing bipartisan effort to reform our civil forfeiture laws and practices.  Indeed, the time has come for Congress to enact the DUE PROCESS Act, a bipartisan bill to significantly alter these laws and increase protections for innocent property owners.” 

Full text provided below:

Dear Attorney General Sessions:

We write to express strong objections to your decision to reverse the Department of Justice’s policies curtailing adoptive seizures.  Under this process, state and local law enforcement can receive up to 80 percent of forfeiture proceeds for simply transferring seized property to federal authorities to pursue forfeiture under federal law. 

This practice has been criticized as a “bounty” system because it perversely incentivizes state and local law enforcement to seize the property of individuals who may not even be guilty of a crime. Furthermore, in states that restrict civil forfeiture, the policy raises serious federalism concerns by allowing state law enforcement to pursue forfeiture in circumvention of protections provided by state law. 

The prior policy issued in January 2015 substantially curtailed adoptive forfeitures.  In announcing your decision to reverse these reforms, you claimed to implement “safeguards.” None of these steps, however, will provide any meaningful degree of protection against abuse.

The first two steps outlined in the Policy Directive issued by the Criminal Division’s Money Laundering and Asset Recovery Section, concerning review of seizures and probable cause determinations, are merely internal assessments that make us no more comfortable with adoptive seizures than we were prior to their curtailment three years ago. 

Curiously, the third step would provide additional limitations on certain adoptions, but only for cases of less than or equal to $10,000 – reflecting your decision that higher-dollar cases are somehow less deserving of protections against abuse.  In any event, even this degree of protection for the lower dollar cases is largely illusory as the Policy Directive provides that a federal prosecutor in the U.S. Attorney’s Office may simply waive the additional procedures in individual cases. 

Lastly, the Policy Directive admonishes that the Department should “proceed with particular caution” in seeking the forfeiture of people’s homes if they were “not implicated in criminal conduct.”  We cannot emphasize enough how stunningly inappropriate and brazen it is for the Department to engage in such a practice.  That officials charged with the responsibility of protecting the rights of our citizens would contemplate taking personal residences of innocent homeowners underscores our lack of faith in the discretion to be exercised by Department officials in the prior three “safeguards.”   

Civil forfeiture, at the federal level and also through adoptive seizures, requires significant reform if is to continue at all.  It has become increasingly apparent that the procedures in federal law governing civil forfeiture are fundamentally inadequate.  Forfeiture reform has long been a bipartisan issue, raising serious concerns about fairness and due process on both sides of the aisle.

Congress last enacted reform to these laws in 2000, under the Civil Asset Forfeiture Reform Act, sponsored by the late Representative Henry Hyde.  We have learned much since passage of that law and have introduced bipartisan legislation, entitled the DUE PROCESS Act, to responsibly increase procedural protection for innocent owners.

We should be reforming civil forfeiture, not expanding it.  Therefore, while we pursue legislation on this issue, we ask that you withdraw the newly-announced changes to the Department’s adoptive seizure policies. 

Although we believe this new policy should be rescinded, we would like additional information concerning the rationale for some of its provisions and your plans to implement them.

  1. As discussed above, the Department’s Policy Directive admonishes that the Department should “proceed with particular caution” in the forfeiture of people’s homes if the owners’ were “not implicated in criminal conduct.”
    1. What additional oversight does the Department propose to protect innocent homeowners from seizure of their homes?
    2. In what circumstances would the Department consider it appropriate to seize a person’s home when that person is not implicated in any criminal conduct? 
    3.  Does the Department advise any particular caution for seizure of a person’s home based on relatively minor criminal conduct?
  2. The Department’s policy would appear to allow federal adoptions in violation of state law.
    1. If law enforcement is operating in a state that has banned forfeiture, does the Department consider it appropriate for law enforcement to rely on federal law in circumvention of the laws of their state?\
    2. . Would the Department consider federal adoption of a state forfeiture appropriate if the forfeiture were based on simple possession of marijuana in a state that has legalized the drug?
  3. Why did the Department propose safeguards exclusively on adoptions valued at less than $10,000?  Are higher value forfeitures worthy of less protection?  Does this incentivize law enforcement to seize higher value property?
     

Please reply with written answers to these questions by August 15, 2017. 

Sincerely,

F. James Sensenbrenner, Jr.

Member of Congress

 

John Conyers, Jr.

Member of Congress

WASHINGTON, D.C. – Today, Congressman Jim Sensenbrenner released the following statement on the devastating news that Molina Healthcare will be dropping out of the Obamacare Exchanges:

Congressman Sensenbrenner: “The announcement that Molina Healthcare will be dropping out of the Obamacare exchanges isn’t a surprise, but it certainly is disastrous for the more than 50,000 of Wisconsinites who may be left with no health care options under Obamacare.

“This is the latest development in a string of devastating health care losses for Wisconsin under Obamacare – an ill-fated law that has been a failure since its passage. It’s imperative for the health of our nation for Congress to find real solutions to the intensifying problems caused by Obamacare. The House of Representatives passed smart, patient-centered repeal and replace legislation – the Senate must do the same for the sake of all Americans. ”

WASHINGTON, D.C. – The Rapid DNA Act, introduced by Rep. Jim Sensenbrenner (R-Wis.) and passed in the House of Representatives with bipartisan support earlier this year, has passed in the Senate and now heads to President Donald Trump to be signed into law.

The Rapid DNA Act would establish a system for the integration of Rapid DNA instruments for use by law enforcement to help reduce the DNA backlog. Unlike traditional DNA analysis, which can take weeks, Rapid DNA analysis permits processing of DNA samples in approximately 90 minutes or less.

This technology has the potential to revolutionize the way in which arrested individuals are enrolled in the criminal justice system, shorten the time required for their DNA to be linked to unsolved crimes, and expedite the exoneration of innocent suspects by giving law enforcement officials a new system that meets FBI quality assurance standards to compare DNA samples collected at the time of an arrest to profiles in the Combined DNA Index System (CODIS).

Congressman Sensenbrenner: “Rapid DNA is a promising new technology and an effective tool for law enforcement – I’m thrilled to see its final passage in the Senate. This technology will help quickly identify arrestees and offenders, reduce the overwhelming backlog in forensic DNA analysis, and make crime fighting efforts more efficient while helping to prevent future crimes from occurring. It will also save time and taxpayer dollars. I look forward to President Trump promptly signing it into law.”

WASHINGTON, D.C. – Today, Congressman Jim Sensenbrenner released the following statement on health insurance companies across the country looking to increase Obamacare premiums:

Congressman Sensenbrenner: “Unfortunately today we’re seeing further evidence of the failures of Obamacare. Across the country, health insurers are looking to once again increase premiums by as much as 30 percent, putting added pressure on millions of Americans who cannot afford it.

“Wisconsin is not immune from these increases. Molina Healthcare of Wisconsin is proposing an increase ranging from 30 to 46 percent for its member plans. Increases like these will be devastating for Wisconsinites who are not eligible for Obamacare subsidies.

“Earlier this year, the House of Representatives passed a smart, patient-centered repeal and replace plan that would make health insurance better and more affordable. It’s my hope that Congress can move forward to find real solutions that will finally put an end to skyrocketing prices and provide the quality care that Americans need and deserve.”  

WASHINGTON, D.C. – Today, Congressman Jim Sensenbrenner (R-Wis.) announced that Loni Hagerup, Sensenbrenner’s deputy chief of staff, and Matt Bisenius, director of legislative affairs at the National Propane Gas Association, will serve as co-chiefs of staff beginning in August.

The news comes after the announcement that current Chief of Staff Bart Forsyth has accepted a new position with the Pharmaceutical Research and Manufacturers of America (PhRMA).

“Working on Capitol Hill is an unparalleled opportunity to do good and make a difference in people’s lives. In Henry Hyde and Jim Sensenbrenner, I’ve had the distinct privilege of serving two historic Members of the House of Representatives,” said Forsyth. “I am deeply grateful to both of them for the opportunities they have given me. It is particularly hard to leave Congressman Sensenbrenner and his amazing staff, but I am excited to join a world-class team at PhRMA and to continue my work with the Hill on PhRMA’s behalf.”

Forsyth served under Sensenbrenner in a number of capacities, including his work on the House Science Committee as investigative counsel, Sensenbrenner’s chief of staff on the Select Committee on Energy Independence and Global Warming, his work on the House Judiciary Committee, and finally as Sensenbrenner’s chief of staff in his personal office.

“It’s always difficult to part with talented members of staff, especially those who have served faithfully for many years,” said Sensenbrenner. “Bart has been a true asset as a trusted advisor, effective facilitator, and respected leader. I’m thankful for his distinguished service and wish him continued success as he begins this new chapter.”

Stepping into the role of chief of staff are Sensenbrenner alumni Loni Hagerup and Matt Bisenius.

Hagerup, a long-time Sensenbrenner staffer, began her political career in the Wisconsin State Assembly as a legislative aid before moving to Washington, D.C. to work for Sensenbrenner as his staff assistant in 1985. After serving in the Reagan administration, she returned to work with Sensenbrenner in Wisconsin in various roles as campaign manager, district director, and most recently deputy chief of staff. 

“I’m thrilled to continue my service with Congressman Sensenbrenner in this new role, although Bart’s absence will certainly be felt,” said Hagerup. “Team Sensenbrenner has benefitted immeasurably from his keen legal mind, sharp communication acumen, and adept people skills. Bart’s leadership has been exemplary and he will be missed.”

Matt Bisenius rejoins Congressman Sensenbrenner’s staff from the National Propane Gas Association, where he currently serves as the director of legislative affairs. Matt joined NPGA in August 2014, and has managed several successful advocacy campaigns during his tenure. Prior to joining NPGA, Matt worked as the senior legislative assistant for Congressman Sensenbrenner. 

“I am excited for the opportunity to return to the Sensenbrenner office. The Congressman’s exceptional record of constituent service and legislative success greatly benefits Wisconsin’s Fifth District. I look forward to working with the staff to further support and expand the Congressman’s work.”

By Commissioner David Jeffrey for Huff Post

Last summer, President Barack Obama signed The Comprehensive Addiction and Recovery Act (CARA) into law to combat the skyrocketing opioid epidemic in our country. Drug overdoses related to prescription pain relievers and heroin are now the leading cause of death among Americans under 50. More than 90 Americans die each day from the opioid epidemic.

As you may have seen in the news, rustbelt states are at the center of the epidemic. In Ohio, according to the state Department of Health, opioid-related deaths jumped from 296 in 2003 to 2,590 in 2015 – a 775 percent jump. In Indiana, we’ve seen double digit percentage increases in the patient count at our Harbor Light Centers, which offer treatment and recovery programs for those struggling with addictions.

With support from lawmakers on both sides of the aisle, CARA is the first major federal addiction act in 40 years. The legislation encompasses all six pillars necessary for a coordinated response – prevention, treatment, recovery, law enforcement, criminal justice reform and overdose reversal. CARA gives nonprofit organizations such as The Salvation Army critical help for our work with the thousands of Americans struggling with addiction. To mark the first year since the legislation passed, I asked Wisconsin Representative Jim Sensenbrenner about how we can continue to raise awareness about the severity of the opioid epidemic.

Q: What is the Comprehensive Addiction and Recovery Act (CARA) and how does it help Americans struggling with addiction to opioids?

A: The Comprehensive Addiction and Recovery Act (CARA) helps those with addiction through alternative incarceration programs and outpatient treatment options for non-violent drug offenders. Such options not only better serve individuals, but save significant taxpayer dollars. The legislation also creates community-based anti-drug coalitions and a national education campaign, which helps rebuild communities, deter young Americans from trying drugs, and stalls the increase of addicts, overdoses, and deaths.

Q: Why do you feel it’s important to raise awareness about the rise in opioid consumption?

A: Opioid abuse has become a major problem in the United States. Not only does it ruin the lives of individual users, but it has negative impacts on the families and friends of abusers as well. Addiction also weakens communities and puts unnecessary added pressure on taxpayers who ultimately pay for increased health care, incarceration, and judicial costs.

Q: What should every American know about the opioid epidemic?

A: Opioid addiction isn’t specific to any one demographic. It grips individuals from all walks of life. From urban neighborhoods, to quiet suburbs, to rural America.

Q: Why is continued support still needed for federal legislation to combat the opioid epidemic?

A: Between 2002 and 2013, national heroin deaths nearly quadrupled, reaching more than 8,000 annually by 2013. In that same year, an estimated 517,000 people used heroin – a figure up 150 percent from just six years earlier.

Between 2006 and 2011, my home state of Wisconsin experienced a 350 percent increase in heroin samples submitted to the Wisconsin State Crime Laboratory by law enforcement. In 2012, the number of heroin-related deaths jumped by nearly 50 percent and statewide data shows one quarter of Wisconsinites who abuse the drug began using when they were younger than 25 years old.

It’s clear that this problem won’t solve itself. It will take the hard work and cooperation of Congress, as well state and local entities, to find and implement serious solutions to fight this epidemic.

Q: How can social service providers help raise awareness about the opioid epidemic or help those struggling with addiction?

A: The community-based anti-drug coalitions noted in CARA will play a large role in helping social service providers on the local levels. While the federal government can help with these efforts through additional funding, the real, meaningful work takes place within communities.

Q: What’s been the most surprising thing you’ve learned about people struggling with addiction to opioids?

A: The fact that many abusers begin at a young age is troubling, which is why some provisions within CARA focus on an awareness campaign. It’s critical that we not only help those currently struggling with addiction, but also our nation’s young adults. If we can stop them from trying opioids and other drugs, we can stop the tragedies of addiction before they happen.

You can view this article online here.

Mr. Speaker, today I rise to recognize the 27th anniversary of the passage of the Americans with Disabilities Act.

Congress passed the ADA to break down the physical and societal barriers that kept disabled Americans from fully participating in the American Dream. From creating standards for wheelchair accessibility in places open to the public, to requiring 911 phone lines to be equipped to respond to hearing-impaired callers, the ADA has transformed the lives of millions of Americans. The progress we’ve made is remarkable, and I’m proud to have been part of these efforts.

Throughout my career, I have seen few pieces of legislation that bring all people together as much as the ADA. Not only did this historic legislation pass both chambers with large bipartisan majorities, but the ADA Amendments Act passed unanimously in 2008. This legislation shows that Congress can come together to solve problems for the betterment of the American people.

I proudly stand with the thousands of advocates who come to Washington D.C. this week to continue the fight for the rights of all Americans.

WASHINGTON, D.C. – Today, performing rights organizations (PROs) BMI and ASCAP announced they will be joining efforts to release a database for musical works and sound recordings. This announcement comes just six days after Congressman Jim Sensenbrenner (R-Wis.) introduced the Transparency in Music Licensing Ownership Act, which also aims to establish a comprehensive database for music and sound recordings through the Register of Copyrights.

Despite claims from BMI and ASCAP that they have been working on this joint database for the past year, they have made no effort to cooperate with Members of Congress on the issue. Further, such a database would be incomplete due to the lack of participation from all PROs, meaning business owners across the country would continue to be plagued by the convoluted and difficult process of finding and purchasing the correct licenses to play and perform music in their establishments.

There is an overwhelming atmosphere of mistrust between businesses and PROs, which is why it’s imperative that a publicly accessible database is established through the Register of Copyrights. Business owners and those seeking music licensing should have the ability to access a complete, easy-to-navigate system which will provide them peace of mind in knowing that they have the facts they need to make smart, legal purchasing decisions. A third party database will streamline and bring much-needed transparency to the process. Under the BMI and ASCAP initiative, businesses would still be subject to statutory damages – this is unacceptable and it’s a problem only Congress can solve.

Congressman Sensenbrenner: “If BMI and ASCAP were serious about establishing a music database, not only would they have spoken to my office and other interested Members of Congress about their plans, but they would have also included their fellow PROs in the initiative. With their announcement today, they are grasping at straws; trying to maintain power over a failing process that only serves their interests, not those of the American consumer.”

Some of the key provisions of Congressman Sensenbrenner’s Transparency in Music Licensing Ownership Act include:

  • Require the Register of Copyrights to establish and maintain a current informational database of musical works and sound recordings while granting the Register authority to hire employees and contractors, promulgate regulations, and spend appropriated funds necessary and appropriate to carry out these functions
  • Ensure that the database is made publicly accessible by the Copyright Office, in its entirety and  without charge, and in a format that reflects current technological practices, and that is updated on a real-time basis
  • Limit the remedies available to a copyright owner or authorized party to bring an infringement action for violation of the exclusive right to perform publicly, reproduce or distribute a musical work or sound recording if that owner/ authorized party has failed to provide or maintain the minimum information required in the database

This commentary appeared in the July 17, 2017 issue of SpaceNews Magazine.

As the Trump administration continues to review federal spending and implements good-government policies in Washington, it should take into consideration America’s outdated acquisition policies and procedures at the Pentagon and NASA.

Modern manufacturing and production is becoming increasingly complex, especially within highly regulated industries such as aerospace and defense. Ensuring quality in these industries can mean the difference between life and death. Quality and mission assurances are significant components of the hundred million dollar legacy launch cost of NASA. This spring, NASA’s Inspector General (IG) revealed that America’s space agency lost more than $1 billion over the past decade due to components that failed to meet performance expectation or quality standards. Moreover, NASA is not the only organization that falls prey to a continuing escalation of complexity with a growing risk of failure. We need to look no further than current programs for multipurpose aircraft to support the Air Force and Navy. The lack of appropriate oversight, reporting, and corrective actions continues to cost taxpayers millions of dollars, delaying strategic defense initiatives in the process.

In order to reduce costs, rather than looking for things to avoid in the future, companies, especially those with government contracts, should instead turn to a solution that will automate the critical and necessary quality and mission assurance tasks. An electronic quality management system (QMS), which has been designed specifically to support defense contractors and their supply chain partners, allows for the integration of quality and manufacturing data with a seamless interface to a company’s enterprise resource planning solution.

A modern QMS can provide many benefits to an organization. The ability to track the entire product lifecycle in real-time, including the documentation of a component’s condition, history and genealogy ensures improved quality and lowers production costs. With a complete online product history, that information is immediately available to the Department of Defense (DoD), as well as auditors. The information they request is available in minutes, rather than days.

However, the uses of electronic QMSs are not widely adopted throughout government supply chains and inconsistent federal policies on the matter are not helping. A 2014 Pentagon IG report found that DoD has not established an overarching quality management policy to ensure the consistent application of QMS requirements across the military, nor does it have an effective feedback mechanism in place to evaluate the performance of quality management systems. As a result, the IG recommends the Pentagon emphasize the importance of a robust quality management program throughout the entire acquisition life cycle, and establish standardized reporting requirements for quality assurance metrics throughout the Defense Department.

Congress and the Executive branch both agree that government acquisition programs are ripe for modernization and improvement. This shared view is reflected in the increasing size of our acquisition workforce – especially at the Pentagon – and the fact Members of Congress inserted more than 10 provisions specifically targeting the acquisition workforce in the 2016 National Defense Authorization Act (NDAA).

One such provision, which was included in last year’s NDAA conference report, encouraged the Defense Contract Audit Agency (DCAA), which is responsible for conducting Defense contract audits, to examine the potential for electronic quality management systems to improve the ability of DCAA to conduct thorough and timely audits. This is a step in the right direction to ensure potential production mishaps are identified and remedied before they develop into severe problems resulting in increased costs and missed deadlines.

Managing the supply chain and generating the associated data is not a simple operation. Complex manufacturing involves supply chains comprised of multiple levels. Airplanes alone are made from hundreds of thousands of parts from thousands of supplies – domestic and international. Having the ability to hold all suppliers accountable and the capacity to score the supplier in a real and meaningful way is critical to driving higher quality across the DoD, NASA, and other strategic initiatives supported by tax dollars.

Moving forward, the government should continue to examine the potential use of electronic quality management systems within its own agencies, and encourage its private sector contractors to follow suit.

U.S. Rep. Jim Sensenbrenner (R-Wisc.) chaired the House Science Committee from 1997–2001.

You can view this piece online here.