Senate Blue Slips

October 20, 2017

More than 140 federal judgeships are currently unoccupied, a record high number. President Trump has nominated almost 60 candidates to fill those slots but so far only seven have been confirmed.

There are many reasons why the Senate has not been able to confirm more of President Trump’s nominees, but a major obstacle has been Democrat abuse of a Senate Judiciary Committee practice more commonly known as the “blue slip.”

When a candidate is nominated to a federal judicial vacancy, the two senators from the states of that vacancy are given blue slips of paper by the Senate Judiciary Committee chairman soliciting the senators’ opinion of the nominee in question.

The written opinions of the home-state senators are then taken into consideration when the Judiciary Committee considers the nomination. But sometimes senators choose not to return the blue slip at all, thus delaying and sometimes even blocking a nomination entirely.

Senate Democrats are currently refusing to return blue slips on a number of President Trump nominees and when the possibility of proceeding to committee consideration without the blue slips has been raised, these same Democrats have claimed Republicans are trying to destroy one of the Senate’s most sacred traditions.

Nothing could be further from the truth.

The blue slip was invented in 1917—128 years after the First Congress convened. It was never treated as a veto until 1955, when Senator James Eastland became Chairman of this Committee. Eastland was an ardent segregationist and, by turning the blue slip into a veto, he was trying to block the implementation of Brown v. Board of Education.

Eastland’s successor, Senator Ted Kennedy, immediately changed the status of the blue slip when he became chairman. To make a long story short, since 1955, there have been eight chairmen of the Committee, including Eastland. By my count, two have treated the blue slip as a veto. The remaining six either said the blue slip was not a veto or did not treat the blue slip as if it were a veto. So the practice, even since 1955, is mixed. And of course those first 128 years of the Republic also count.

The blue slip has taken on added importance because, in 2013, the Democrats eliminated the filibuster from the executive calendar. We should be cognizant that when we change the rules—the actual, written protections we can rely on—we are left reliant on customs. Customs can always be changed, especially when they are not particularly strong customs.

That’s something I hope we all consider as we move forward and determine how to process pending nominees.

Repeal the Jones Act

October 6, 2017

In the wake of Hurricane Maria, you probably saw those pictures of shipping containers stranded at United States ports, waiting to be delivered to survivors in Puerto Rico.

One of the reasons it is so difficult to get relief supplies to hurricane victims is a 1920 law that was designed to promote a civilian merchant marine fleet that could “serve as a naval or military auxiliary in time of war or national emergency.”

This Merchant Marine Act, otherwise known as the Jones Act, requires that all goods shipped between United States ports must be transported by United States ships manned by Americans. So a foreign ship carrying cattle from say, Los Angeles to Tokyo, would be forbidden from stopping in Hawaii along the way.

This policy is great for American shipping companies, but it is terrible for American consumers in remote places like Alaska, Hawaii, and Puerto Rico. One economist estimates that the Jones Act has cost the Puerto Rican economy $17 billion over the past 20 years alone.

It has become routine for presidents to waive the Jones Act in the wake of natural disasters. President Bush waived the Jones Act after Hurricane Katrina, and President Trump waived the law after Hurricanes Harvey, Irma, and eventually Maria as well.

But the president shouldn’t have to waive this World War I-era relic after every natural disaster. The United States has long had an adequate navy that can provide for national security without an auxiliary merchant marine force.

It is long past time to repeal the Jones Act entirely so that Alaskans, Hawaiians, and Puerto Ricans aren’t forced to pay higher prices for imported goods—and so they rapidly receive the help they need in the wake of natural disasters.

That is why I joined with Sen. John McCain (R-AZ) this week to permanently exempt Puerto Rico from the Jones Act. American Samoa, the Northern Mariana Islands, and the U.S. Virgin Islands are exempt from the Jones Act already. Puerto Rico should be, too.

The Native Species Protection Act

September 29, 2017

When the pioneers first moved across the Great Plains, they found them to be covered with foot-tall rodents they eventually called prairie dogs.

Utah is estimated to have had as many as 95,000 of these Utah prairie dogs as late as the 1920s. But due to disease, drought, and poison, that number had dropped to almost 3,000 in 1972.

In 1973 the Utah prairie dog was listed as an “endangered” pursuant to the Endangered Species Act, and a management plan was developed bring the species back.

The Utah prairie dog population quickly recovered and by 1984 the United States Fish and Wildlife Service agreed to reclassify the animal from “endangered” to “threatened.” Unfortunately the federal government also chose to leave most of the regulations protecting the Utah prairie dog in place.

Since that time, the Utah prairie dogs have fruitfully multiplied and now there are now an estimated 40,000 in the state.

If you live far away in Washington, DC, this may sound like fantastic news, but if you live in southwest Utah, the only place in the world this species of prairie dog exists, it is not so great.

These critters may be cute, but not only have they ruined crops and backyards, but they have also been known to invade cemeteries, open coffins, and topple gravestones.

The people of southwest Utah have had enough.

In 2013 some residents of Cedar City, Utah sued the federal government and challenged the authority of the U.S. Fish and Wildlife Service to manage the Utah prairie dog.

See unlike many species, the Utah prairie dog exists only in Utah. So the residents of Cedar City argued that since the Utah prairie dog habitat didn’t cross state lines, it did not affect interstate commerce, and therefore Congress had no power to regulate it under the Constitution.

In 2014 a federal district court sided with the residents of Cedar City and turned management of the Utah prairie dog over to the state of Utah. For the past two years under state management, the species reached its highest population levels since the 1970s. But an appeals court overruled the district court’s decision and returned management authority to the Fish and Wildlife Service earlier this year.

The people of Cedar City shouldn’t have to seek permission from Washington, DC to control their rodent population.

That is why I recently introduced, the Native Species Protection Act, which would clarify that the federal government has no regulatory jurisdiction over a single-state species.

This is a commonsense reform that would limit the damage caused by federal mismanagement of protected species, while empowering state and local officials to pursue sensible conservation plans with their communities.

SHUSH!

September 22, 2017

If you’ve ever looked outside an airplane window before takeoff, you’ve see ground maintenance personnel wearing protective earmuffs. That’s because the sound of a jet engine taking off, 150 decibels, is loud enough to rupture your eardrum.

The sound of a rifle being shot is an even louder 165 decibels, which is why hunters, sportsmen, and marksmen like to use firearm suppressors to lower the volume of their shots.

But suppressors don’t work like they do in the movies. You can’t make an AR-15 as quiet as using a stapler. At most, a suppressor can lower the sound of a rifle shot by about 35 decibels, down to about 130 decibels, about the same sound level as a chainsaw.

Nobody is going to sneak away from anybody with a chainsaw going full blast, but at least their eardrums won’t burst.

Unfortunately the federal government treats suppressors just as oppressively as they treat actual firearm sales. To buy a silencer a citizen must complete two copies of ATF Form 4, fill out TF Form 5330.20, obtain a certification from a local chief law enforcement officer, obtain two copies of finger prints, obtain two passport photos, and mail all of these items plus a $200 check to the Bureau of Alcohol, Tobacco, and Firearms. Even after doing all that, the approved Form 4 won’t come back for 9-12 months.

This is a ridiculous, unnecessary, and oppressive process which only hurts the eardrums of millions of hunters, sportsmen, and marksmen every year.

That is why Sen. Mike Crapo (R-ID) and I have introduced the Silencers Helping Us Save Hearing Act of 2017 (SHUSH). The bill would eliminate all federal regulation – including taxes, fees, and registration requirements – of firearm suppressors.

Unlike the Hearing Protection Act, a competing suppressor bill, SHUSH does not create a new federal background check for firearm accessories. The federal government knows enough about us already, another federal database isn’t going to help anyone.

Firearm suppressors are not lethal. You can’t kill anyone with one. And they do not turn criminals into James Bond like in the movies. They do make a perfectly legal sport more safe for millions of Americans and SHUSH will make it easier for Americans to protect themselves.

North Korea’s Quiet Crimes

September 15, 2017

Thirteen years ago a 24-year-old Brigham Young University student named David Sneddon vanished in China’s Yunnan province.

After a cursory investigation, Chinese officials concluded that David must have died while hiking alone through Tiger Leaping Gorge.

But David’s kin retraced his steps, and they found that the official story didn’t add up.

For one, David was an experienced hiker and a responsible kid—an Eagle Scout, in fact. Could he have fallen into such peril on a well-traveled trail? Unlikely.

Supposing he had, where was the body? Over a decade later, no remains have been produced.

Eyewitness testimony, meanwhile, placed David in a Chinese city at the end of his planned hiking route. This suggests he passed safely through the gorge before disappearing.

He would have had to circle back through the gorge in order for the official explanation to be correct. Again, unlikely. After thirteen years, no evidence exists to support the official explanation of an untimely death in the gorge.

And then there were other curious details.

David Sneddon was traveling near the so-called “Asian Underground Railroad,” a network of mostly Christian missionaries who help North Korean defectors flee to safety.

North Korean agents are known to operate along the route, ruthlessly hunting down and intercepting defectors and returning them to execution or permanent captivity on the gulag peninsula of North Korea.

And Sneddon was last seen leaving a Korean restaurant. Korean restaurants reportedly are used as outposts for North Korean espionage and illicit enterprise.

Finally, and perhaps most tellingly, one month before David’s disappearance, North Korea took the rare step of releasing an American captive, 64-year-old Charles Jenkins. North Korea had forced Jenkins to teach English to its spies at a military university during his almost 40-year captivity.

After his release, the regime needed a substitute teacher. David Sneddon was an Asian Languages major. Highly educated, David spoke perfect American English with a Midwestern accent.

Subsequent intelligence from inside North Korea has supported what these facts strongly suggest: It is likely David Sneddon was taken by the North Korean regime in 2004. He likely has been held captive in that country ever since.

David Sneddon’s possible abduction is one link in a chain of North Korean crimes that stretches back to the Korean War, when the regime ordered the capture of over 80,000 “prominent” South Koreans.

Since the Armistice, North Korea has used a combination of flattery and force to abduct many thousands more.

The regime tricked more than 90,000 ethnic Koreans in Japan into traveling to North Korea to build a “worker’s paradise” they could never leave.

Roughly 100 other disappearances in Japan have been attributed to Pyongyang. In many cases, individuals were snatched from Japanese shores and spirited away on speedboats, never to be seen again.

Similarly, nearly 4,000 South Korean fishermen have been abducted after run-ins with North Korean intelligence vessels.

Recent reports indicate that North Korea has been hunting in China to discourage involvement in the Asian Underground Railroad.

And Pyongyang’s reach extends beyond the Asia-Pacific region. Its operatives have attempted kidnappings in such familiar locales as London, Copenhagen, and Beirut.
All told, the Committee for Human Rights in North Korea estimates that as many as 180,000 people have been abducted by North Korea.

One-hundred and eighty thousand. That’s just a few thousand less than the population of Salt Lake City.

Of those 180,000 abductions, only 13 have been acknowledged by North Korea and of these 13, only 5 were allowed to return.

The regime likely acknowledged this in the hope it would lead to a multibillion-dollar reparations payment from Japan. In the process of making this limited admission, it fabricated evidence and stonewalled investigators in order to cover up the true extent of its crimes.

It is easy for us to lose sight of North Korean abductions in light of the regime’s other flagrant offenses.

It has swapped weapons and expertise with other pariah states, including Iran and Syria.

It has conducted a campaign of political murders, including the assassination of a member of the Kim family in the public terminal of a Malaysian airport.

It continues to subjugate the North Korean people in conditions relatable to us only through the writings of George Orwell. For the majority of the impoverished, oppressed citizens of North Korea, from birth to death, they are doomed to suffer out their lives in the gulag peninsula of North Korea.

And of course it has made rapid strides in its nuclear weapons and ICBM programs, raising the terrible spectre of nuclear Armageddon once again.

In stark contrast to its nuclear program or its missile tests, North Korea’s abductions are quiet crimes.

They are marked not by seismic activity but by the absence of loved ones. By late-night walks never completed. By fishing boats that never return. By hikers who vanish from the trail.

Because of the quiet nature of North Korea’s abductions, it is up to the Free World to be loud. We have to be like the Sneddon family in Utah and the Yokota family in Japan, who have advocated tirelessly for their loved ones and all other abductees.

In that spirit, I, along with several of my colleagues in Congress, have introduced a joint resolution expressing our concern about the disappearance of David Sneddon.

The resolution encourages the State Department and Intelligence Community to investigate all plausible explanations for David’s disappearance—including abduction by North Korea.

The resolution further encourages the United States government to work with the Sneddon family and our allies in the region to investigate the disappearance and hopefully secure his release.

This resolution is a start, and I pray that one day soon the Sneddon family will be reunited with David.

It is unlikely we will ever know the stories of all those held captive in North Korea, so great are its crimes. But we can do much more for the few we know.

We can shine a narrow searchlight into the darkness of tyranny, and wait for dawn to break on North Korea.

The Art of Tolerance

September 8, 2017

In July 2012, two men entered the Masterpiece Cakeshop in Lakewood, Colorado and asked the owner of the bakery, Jack Phillips, to custom-design a wedding cake for the pair's same-sex wedding.

Phillips offered to sell the couple anything else in the store, even a pre-made cake, but citing his Christian faith Phillips declined to design a special cake just for the couple’s wedding.

The couple then filed a complaint with Colorado Civil Rights Commission who found that Phillips had violated the Colorado Anti-Discrimination Act and ordered Phillips to bake the couple a wedding cake. The Commission further ordered Phillips to go through a “re-education” program and file quarterly “compliance” reports with state showing that his business was following the state’s prevailing marriage doctrine.

Phillips appealed the Commission’s decision to Colorado’s Supreme Court and when that court ordered him to bake the cake too, he then appealed to the United States Supreme Court who will hear oral arguments on the case later this year.

This week, 85 of my congressional colleagues and I signed an amicus brief supporting Jack Phillips’ First Amendment right to freedom of expression. It is a sad commentary on the current state of religious freedom in this country that this case had to go this far.

The American colonies were settled by persecuted religious minorities. The Constitution makes clear that America is a meant to be a nation that tolerates and protects differences of opinion.

We’re supposed to share the public square with people who hold vastly different beliefs about life, not to mention the life to come.

It is clear we are going through a period of heightened tension and distrust in this country. But I believe that most Americans still have the maturity—not to mention the neighborly decency—to live side-by-side with people who are different from them.
The Supreme Court should reaffirm the basic principle that government is not a legitimate tool to squelch dissent. It cannot force us to speak when we want to remain silent, just as it cannot shut down our speech in the public square.

Rather than enforcing conformity, the Court should leave us to work out our differences among ourselves, with peace and charity.

A Privacy Update

July 28, 2017

The Fourth Amendment to the Constitution states plainly that Americans cannot be subjected to “unreasonable searches and seizures” of our “persons, houses, papers, and effects.”

But what about emails, text messages, and digital documents? Do they qualify for protection under the Fourth Amendment?

Any reasonable observer would answer yes, given how much intimate and personal information we share through those mediums every day. Electronic communications and records are the “papers and effects” of an online age. They should clearly be protected from government snooping.

It is stunning, then, that current law does not give provide sufficient protection to electronic communications. This needs to change, and it will if I and several of my colleagues are successful.

America’s online privacy laws are based on a bill passed way back in 1986, the Electronic Communications Privacy Act (ECPA).

This well-intended bill prohibited the federal government from intercepting electronic communications and accessing some stored data. That’s because its authors understood that electronic communications were no different than phone calls or letters transmitted by homing pigeon.

But when Congress wrote the ECPA in 1986, the “Internet” as we know it did not exist—its predecessor, ARPANET, was used only by academic researchers, the military, and a few hobbyists. Congress did not anticipate that within a few decades the Internet would be used by billions to communicate, read the news, and even shop for groceries.

So they carelessly included a provision in ECPA that permitted the government to access many forms of archived data without getting permission from a judge. Under the provision, electronic records stored with third-party service providers for longer than 180 days are deemed “abandoned,” in the same way that a physical storage unit can be abandoned. Government agents can then access “abandoned” records by subpoenaing the third party.

As a result, we know that government agencies such as the IRS Criminal Tax Division have advised agents that they can rummage through Americans’ old emails without a search warrant—all because, in the words of the FBI, we shouldn’t have a “reasonable expectation of privacy” in our emails.

This provision may have seemed harmless in 1986, the year Metroid and Legend of Zelda debuted in 8-bit graphics on the NES. Practically nothing was stored in a digital form back then. But the law is dangerously outdated in 2017, when any citizen can store all of his personal records online in perpetuity through services like Google Drive and Dropbox.

Since 2013, I have worked with Sen. Pat Leahy (D-VT) and several other colleagues to protect Americans’ papers and effects wherever they are found—whether in a server farm, the Cloud, or a safe deposit box.

This week we re-introduced two bills that would go a long way to accomplishing this goal, the ECPA Modernization Act and Email Privacy Act.

The bills would bring online privacy protections up to par with the protections we expect for other forms of communication.

They would require government agents to obtain a search warrant based on probable cause to access our records, with reasonable exceptions for national security searches and emergency situations.

The ECPA Modernization Act is a little broader than the Email Privacy Act, since it also requires law enforcement to get a warrant before they can track your location by using your cell phone location data, but both these bipartisan bills are long overdue updates to our federal privacy laws.

The federal government never relinquishes its power over our lives easily. It has fought these reforms at every turn.

Ending Obama’s National Zoning Board

July 14, 2017

On July 16, 2015, President Obama’s Department of Housing and Urban Development issued an innocuous-sounding new regulation that it said would “promote fair housing choice and foster inclusive communities that are free from discrimination.”

This “Affirmatively Furthering Fair Housing” rule supposedly would only assist local communities by providing them with more data needed to comply with the Fair Housing Act of 1968.

What the regulation really did, however, was empower unaccountable bureaucrats in Washington, D.C. with the tools to act as a national zoning board.

Under the new housing rule, HUD would review fair housing plans created by state and local governments using data created and stored by the federal government. HUD could then withhold federal grant money from state and local governments if it thought the plans were deficient.

This new process would give HUD the power to control zoning laws in virtually every community in the country. The federal government could selectively starve local governments of resources if it doesn’t like where they are approving new apartment complexes.

In a July 2015 article in the Washington Times, HUD Secretary Ben Carson said that the department’s attempts to “legislate racial equality create consequences that often make matters worse.” I couldn’t agree more.

That is why Representative Gosar and I sent a letter signed by several colleagues to Secretary Carson this Friday asking him to fully rescind the July 2015 AFFH rule.

“It is critical that we pursue real, sensible reforms to reduce poverty and improve the opportunities available to lower-income citizens at the local level,” the letter reads.

America First in the Americas

June 23, 2017

The United States has long sought a balance between participating in international organizations that promote the spread of democracy and protecting the sovereignty of other countries. At times, this delicate balance has been lost and our ability to promote American interests has been diminished.

Unfortunately, it appears our recent involvement with the Organization of American States has tipped toward undermining the sovereignty of other nations.

The OAS was founded on the admirable principle that "Every State has the right to choose, without external interference, its political, economic, and social system and to organize itself in the way best suited to it." And for decades, the United States has been the single largest donor to the OAS.

While the OAS has proven useful in opposing Communism and dictatorships like the ones in Cuba and Venezuela, some of its recent activities have contradicted its founding principle. The organization has pressured Latin American nations to adopt social policies favored by progressive elites, not their own people. Such initiatives, aided by U.S. funding, ignore the cultures of these countries and ultimately alienate their people from the United States.

The OAS exerts pressure on countries through the resolutions of the General Assembly, executive actions of the Secretary General's office, and rulings of the Inter-American Court. The OAS has also used the Inter-American Commission on Human Rights to force alien cultural practices on Latin American countries, including formal recommendations promoting abortion in countries whose legal, cultural and religious practices defend life.

It has promoted abortion in countries party to the American Convention on Human Rights, which protects human beings from the moment of conception. Countries like Paraguay took measures in 2016 to strengthen and protect their own pro-life standards in reaction to pressure coming from the OAS and Inter-American Commission on Human Rights.

The IACHR also has promoted redefining the institution of marriage, including the 2016 Duque vs Colombia case where the IACHR stated that Colombia's - at the time - traditional definition of marriage reflected, "an obtuse and stereotyped understanding of what a family is." Provocations like that serve no useful purpose for the United States, and indeed hinder constructive engagement with the family-oriented countries of Latin America.

U.S. taxpayer dollars should not be spent overseas to advocate for political issues that aren't even settled here at home. We must ensure that the $41.9 billion we spend on foreign assistance every year does not promote an agenda that many foreigners and Americans alike find repugnant.
Trump has indicated his desire to rebalance our foreign policy to better serve the American people. The State Department can significantly further this goal by ending the progressive cultural imperialism that the OAS spread over the past eight years.

Our national interest lies in promoting security and economic prosperity for Americans, not in telling other democracies what to do. Respecting the cultural and religious differences of our allies should be a top priority for an administration that campaigned on breaking away from business-as-usual foreign policy.

A longer version of this op-ed first appeared in The Houston Chronicle.

Reversing Antiquities Act Abuse

June 16, 2017

During the Christmas season last year, the Obama administration ignored the majority of Utahns by designating a vast tract of land in southern Utah as a national monument. This week, the Department of the Interior took a welcome step toward reversing this executive abuse and returning to a legislative solution.

President Obama used the 1906 Antiquities Act, written to protect “objects of historic or scientific interest,” to transform 1.3 million acres in San Juan County into the Bears Ears National Monument.

There is no doubt that specific sites within the new monument demonstrate historic, scientific, as well as cultural and spiritual significance. Native American tribes believe the area is sacred. And every citizen can appreciate the natural beauty of the sandstone buttes that gave the area its name.

However, the Antiquities Act is very clear that monument designations should be limited to “the smallest area compatible with the proper care and management of the objects to be protected.”

Presidents have ignored this important qualifier in the past, locking up millions of acres that could be managed as multiple-use. In most cases, these expansive monuments have drawn support not from local citizens but from outside interest groups who may not have locals’ best interests at heart, including outdoor recreation corporations and environmental activists who oppose new development.

Unsurprisingly, these unilateral monument designations have been resented by locals who sensed they were being stripped of control over their homes. President Clinton provoked anger in 1996 when he abruptly announced the transformation of 1.9 million acres in the Grand Staircase-Escalante area into a national monument.

President Obama’s designation has provoked a similar response. Public opinion polling consistently finds that a majority of Utahans oppose the monument.

These Utahans want a say in how their land is governed, and this week the Department of the Interior, led by Secretary Ryan Zinke, released a report informed by their concerns.

The report made it clear that the Obama administration abused the Antiquities Act and recommended that President Trump reduce the monument boundary. It also recommended that Congress craft a legislative solution to protect the landscape and allow tribal co-management of important cultural areas in the Bears Ears area.

We should not reward the executive branch for making unilateral decisions about our lands. If President Obama’s abuse of the Antiquities Act is allowed to stand, future abuses will not be far behind.

Decisions should instead be made by elected members of Congress with plenty of input from the general public—especially the local residents whose lives are affected by these decisions.

Thankfully, the current administration is signaling that it hears the people of Utah. This week’s report is a victory and a promising first step toward reversing President Obama’s monument designation.

The Department of the Interior will release a comprehensive report in late August detailing specific policy recommendations for Bear Ears and 26 other large national monuments.