92 See Printz v. U.S., 321 U.S. 98 (1997) 93. 18 U.S.C. section 1073. 94. See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). 95 188 U.S. 321 (1903). 96 514 U.S. 549 (1995). 97 See supra note 19 and accompanying text. 98. 29 U.S.C. section 216 (1996). 99. U.S. v. Turkette, 452 U.S. 576 (1981). 100. 487 U.S. 931 (1988). 101. Id at 949. 102. Id at 949. 103. BLACK'S LAW DICTIONARY 446 (4th ed. 1968) (Statutory crimes are those created by statute, as distinguished from those such as are known to the common law). 104. Robinson v. California, 370 U.S. 660 (1962). 105. 18 U.S.C. §1961 (1982). 106. According to the sociologist who invented the term "enterprise liability" used in RICO, the only apparent distinction between "organized criminals" and business people are that the former are economically and psychologically underdeveloped persons in the process of evolving into white-collar criminals. See E. SUTHERLAND & D. CRESSEY. CRIMINOLOGY 270-71 (10th ed. 1978). 107 The Court has held that strict construction is inapplicable when congressional intent, as evinced by legislative history, is that the statute be construed liberally. United States v. Turkette, 452 U.S. 576, 588-93 (1981). It has been argued that the rule of liberal construction comports with the trend of the states. The argument equates liberal construction with the construction of words according to their "fair import." In fact, liberal construction and construction according to "fair import" derive from opposing attitudes about the proper role of the judiciary. Where liberal construction endorses judicial lawmaking, "fair import" construction is rooted in a reaction to the common law powers of judges. Moreover, the fact that some states may adopt liberal standards of construction does not necessarily justify a liberal standard for federal legislation. States have primarily been concerned with the common law offenses or what are considered "ordinary" crimes. Even though states have generally departed from the common law of crimes in favor of codification and have modified the elements of particular crimes, the codification of crimes follows in large part the content of the common law of crimes. Such crimes present few constitutional problems in terms of notice because the core meanings of crimes such as murder, rape, and robbery are well understood. On the other hand, newly created crimes, whether state or federal, which proscribe conduct in language that is unclear, are more likely to present notice problems. 108. Pub.L. 91-452, Title IX, section 904(a), Oct. 15, 1970, 84 Stat. 941 provides that "The provisions of this title [RICO] shall be liberally construed to effectuate its remedial purposes." 109. See generally J. NOONAN, BRIBES (1984). 110. See John C. Coffee, Jr., From Tort to Crime: Some Reflections on the Criminalization of Fiduciary Breaches and the Problematic Line Between Law and Ethics, 19 AM. CRIM. L. REV. 117 (1981) (hereinafter Coffee, From Tort to Crime] and the cases cited therein. 111. 18 U.S.C. §§ 1341, 1343 (1994). 112. Coffee, From Tort to Crime, supra note 110 at 126-27. ("Courts have refused to define 'scheme to defraud' in terms of any objectively verifiable set of facts or circumstances. Indeed, judicial definition of the term has been almost exclusively negative"). 113. United States v. Wiltberger, 18 U.S. 76 (1820) (emphasis added). The Court relied on K'iltberger in narrowly construing the National Stolen Property Act, 18 U.S.C. 2314 (1994), as applied to a copyright violation. See Dowling v. United States, 473 U.S. 207, 213-14 (1985). 114. J. NOONAN, BRIBES 585-86 (1984). 115. On the Federalist-Republican conflict over the proper role of the judiciary in the new republic, see generally R. ELLIS, THE JEFFERSONIAN CRISIS: COURTS AND POLITICS IN THE YOUNG REPUBLIC (1971), 116. See C. COOK, THE AMERICAN CODIFICATION MOVEMENT: A STUDY OF ANTEBELLUM LEGAL REFORM 86, 9192, 160-61 (1981). 117. "This mode of proceeding manifestly partakes of the odious nature of an ex post facto law." 2 Z. SWIFT, A SYSTEM OF THE LAWS OF THE STATE OF CONNECTICUT 365-66 (1796), quoted in M. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW: 1780-1860 14 (1977). 118. 1 W. STORY, LIFE AND LETTERS OF JOSEPH STORY 298 (1851) Crimes are so various in their nature and character, and so infinitely diversified in their circumstances, that it is almost impossible to enumerate and define them with requisite certainty. An ingenious rogue will almost always escape from the text of the statute book. But how much more certain is the common law. Its flexibility in adapting itself to all the circumstances of the various cases is wonderful. 119. 18 U.S.C. § 1111 (1994). 120. SWIFT, as quoted in HOROWITZ, supra note 117 at 365-66. By construction, a court could render criminal an act which, under prior constructions, was not prohibited. 121. Frank v. Mangam, 237 U.S. 309, 344 (1915) (ex post facto clause of Constitution applies only to statutes). 122. Marks v. U.S., 430 U.S. 188, 191-92 (1977) (retroactive application of standards announced in case decided subsequent to defendant's actions violates due process). 123. J. HALL, GENERAL. PRINCIPLES OF CRIMINAL LAW 61 (2d ed. 1960). 124. Supra, note 19. 125. See J. NOONAN, BRIBES 586 (1984). 126. See Schecter Poultry Corp. v. United States, 295 U.S. 495 (1935) and Panama Refining Co. v Ryan, 293 U.S. 388 (1935). 127. See Perez v. United States, 402 U.S. 146 (1971) and the cases cited therein. 128. See Abrahams & Snowden, Separation of Powers and Administrative Crimes: A Study of Irreconcilables, 1976 S ILL. U.L.J. 1, 34-38, 43, 45-46, 102-05, 117-20. 129. J. NOONAN, BRIBES 604-20 (1984). 130. Id. at 620 (emphasis added). 131. Id. at 584. 132. Id. 133. 18 U.S.C. §1951 (1994). 134. See U.S. v. Kenny, 462 F.2d 1205 (1972), cert. denied 409 U.S. 914 (1972), discussed in J. NOONAN, BRIBES 584-89 (1984). 135. J. NOONAN, BRIBES 587 (1984). 136. The Court in McNally v. U.S., 483 U.S. 350, 360 (1987) declined to extend the scope of the mail fraud statute from protection of property rights to protection of a citizen's intangible right to honest and impartial government: "Rather than construe the statute in a manner that leaves its outer boundaries ambiguous and involves the Federal Goverment in setting standards of disclosure and good government for local and state officials, we read (section] 1341 as limited in scope to the protection of property rights If Congress desires to go further, it must speak more clearly than it has." McNally v. U.S. was legislatively overruled in November, 1988, when Congress amended the statute to make intangible rights actionable. 137. See Linda Duetsch, Man Pleads Guilty to Money Laundering, ASSOCIATED PRESS ONLINE, March 9, 1999. U.S. Customs agents arrested top Mexican bankers and executives in a money-laundering sting, raising tensions between the U.S. and Mexico. Mexico accused the United States of intruding on Mexican sovereignty. See also Chinese National, Companies Indicted on Arms Export Control Violation, ASSOCIATED PRESS NEWSWIRES, March 9, 1999. A U.S. federal grand jury indicted a Chinese immigrant to Canada, a Chinese national, and two foreign companies for gun running and money laundering. STATEMENT OF JOHN T. SPOTILA OFFICE OF INFORMATION AND REGULATORY AFFAIRS before the COMMITTEE ON GOVERNMENTAL AFFAIRS Good afternoon, Mr. Chairman and members of the Committee. Thank you for inviting me to appear before you today. At the outset, on behalf of the President, I want to emphasize our commitment to the principles of federalism and our respect for the Tenth Amendment to the Constitution. Mr. Chairman, as you rightly have pointed out, "the national government has limited powers" and, generally, "government closest to the people works best." President Clinton has actively encouraged intergovernmental consultation in his issuance of Executive Orders 12866 and 12875 and his support for and signing of the Unfunded Mandates Reform Act. You have asked me to discuss S. 1214, the "Federalism Accountability Act of 1999." This bill seeks to promote the integrity and effectiveness of our Federal system of government. It would do so in four ways - having committee and conference reports contain an explicit statement on the extent to which the bill preempts State or local law; stating rules of construction regarding the preemption of State and local government authority by Federal laws and regulations; -2 calling for extensive consultation with State, local, and tribal officials and their representatives, and the preparation by agencies of federalism assessments for their rules; and establishing an information collection system to monitor Federal statutory, regulatory, and judicial preemption. S. 1214 clearly represents a serious effort to guide relations between the Federal government and state and local governments. We respect and support that effort. S. 1214 also avoids a number of problems present in its House counterpart, H.R. 2245. We are pleased at that. We do have concerns, however, that in its current form S. 1214 could have unintended consequences. These may include burdening agency efforts to protect safety, health, and the environment by imposing new administrative requirements on their activities and by encouraging additional litigation. The Administration believes that these aspects depart from the approach adopted in the Unfunded Mandates Reform Act, which it supported and is implementing. We believe that S. 1214 needs some revision if it is to accomplish its goal effectively. We would welcome the opportunity to work with you and your staff in this regard. The Department of Justice will be discussing the Administration's concerns with Section 6, "Rules of Construction Relating to Preemption." My testimony will focus on the Administration's views on Section 7, “Agency Federalism Assessments." We do see a need for clarification and have some other drafting comments that we would like to share with you and your staff at a later point. They are not part of my testimony today. Our primary concerns with Section 7 revolve around the interaction between its creation of a series of new rulemaking requirements and the potential for harmful litigation arising from them. Section 7 would require each rulemaking agency to designate a special federalism officer to serve as a liaison to State and local officials and their designated representatives. Section 7(b) -3 would require each rulemaking agency, early in the process of developing a rule, to “consult with, and provide an opportunity for meaningful participation” by public officials of potentially affected governments. These are defined to include State, local, and tribal elected officials and their representative organizations. Section 7(c) would require rulemaking agencies, when publishing any proposed, interim final, or final rule which the federalism official identified as having a federalism impact, to publish in the Federal Register a formal federalism assessment. Each of these federalism assessments would involve four mandatory components: identifying "the extent to which the rule preempts State or local government law," analyzing the extent to which the rule regulates "in an area of traditional State authority" and the degree "to which State or local authority will be maintained," describing the measures the agency took "to minimize the impact on State and local governments," and describing the extent and nature of the agency's prior consultations with public officials and "the extent to which those concerns have been met." These new requirements may not be unreasonable in themselves. As now written. however, S. 1214 raises the risk that agencies could face litigation on each subcomponent of these requirements. The resultant need to document formally each and every aspect of an agency's compliance with them could involve a significant new administrative burden. This is particularly true for agencies who are trying to implement laws and protect public health, safety, and the environment with limited resources. Even if the agency has acted in good faith, litigation can cause delays and drain scarce resources. To avoid such excessive litigation, the Administration feels that S. 1214 should include a statutory bar to judicial review of agency compliance with its provisions. There are practical implications in this regard. The intergovernmental consultation process described in Section 7 must take place before the rulemaking is first published in the Federal Register. We agree that such a process can be beneficial. Currently, as encouraged by E.O. 12875 and the Unfunded Mandates Reform Act, agencies reach out to State, local, and tribal governments and their representatives on a regular basis to hear their concerns and discuss |