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Public Statements

Commerce, Justice, Science, and Related Agencies Appropriations Act, 2013

Floor Speech

By:
Date:
Location: Washington, DC

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Mr. NADLER. Madam Chair, I rise to speak against an amendment added during committee markup of the Commerce-Justice-Science appropriations bill, the one that we've been talking about, that would prevent the Department of Justice from enforcing regulations regarding access to swimming pools under the ADA, the Americans with Disabilities Act.

Since passage of the ADA in 1990, Congress has never acted to weaken the ADA's promise of increased opportunity and access for our neighbors, friends, family, and colleagues with disabilities. Today, however, this House is poised to strip the Justice Department of its ability to enforce certain accessibility rules. We are at this unfortunate and unwarranted juncture because of an aggressive advertising and lobbying campaign that misrepresents what the ADA is and what the Department of Justice rules require.

Congress should not roll back reasonable, balanced, and negotiated civil rights standards that have long enjoyed bipartisan support based on an alarming misunderstanding and misrepresentation of the ADA and Department of Justice regulations, nor should we override a nearly decade-long regulatory process that began under the administration of President George W. Bush and concluded after extensive public notice and comment by adopting the guidelines that the United States Access Board developed in 2004 during the George W. Bush administration.

Certain members of the hotel industry and their lawyers have claimed that Department of Justice rules require all pool owners to install fixed lifts in every pool, that this is costly and burdensome, and that owners who cannot afford to install lifts will have to shut down their pools or face civil penalties. These claims are simply false.

As required by Congress when it passed the ADA in 1990, the Justice Department has now issued rules to increase access to newly constructed and existing swimming pools, rules that have been under development for almost 15 years. New pools must be built with either a sloped entry into the pool or a pool lift, under these new rules. For existing pools, owners will have to do what is ``readily achievable'' based on the size and resources of the owner's business and the prospective cost of the improvement.

If it is readily achievable, which is defined in the ADA as ``easily accomplishable and able to be carried out without much difficulty or expense,'' a business should take the same steps to improve an existing pool that it would take if it were building a new pool. This means that if a fixed lift can be installed easily and inexpensively, it should be. If installing a fixed lift is too expensive and difficult, it is not legally required. The law did not impose a one-size-fits-all requirement. The law is quite flexible.

Fixed lifts are superior to portable lifts because a fixed lift provides a safer and more independent means of getting in and out of a pool for a person with a disability. A fixed lift is available whenever a pool is open without the need for staff to locate the lift, ensure it is in proper operating condition, and provide timely and safe installation while the disabled person waits. This allows a person with a disability to swim whenever a pool is open, just like everybody else.

While those pushing this amendment have raised concerns about lift safety, the United States Access Board has found no evidence of increased safety risks from pool lifts. The same measures already in place at a hotel's pool, such as prohibiting unsupervised children from using a pool, should prevent misuse of a pool lift as for other pool equipment like diving boards, slides, deck chairs, or tables.

This unnecessary amendment will harm countless Americans and veterans who rely upon the ADA. And we have heard from a number of organizations and individuals who oppose legislation prohibiting DOJ from enforcing its regulations. I would like to include some of the letters and testimony sent to the House Judiciary Committee's Constitution Subcommittee, where I serve as ranking member, in the Record.

Opposition to the amendment comes from organizations that work with a broad spectrum of persons with disabilities, including the National Center for Independent Living, the Association of University Centers on Disabilities, the American Association of People with Disabilities, and the National Disability Rights Network, to name a few.

A father and swim coach in Georgia wrote that swimming has helped his son--a medalist at the Athens and Beijing Paralympics--make friends, earn respect, achieve goals, and make the best of his disability.

A dozen veteran organizations wrote similarly of the benefit of rehabilitation and recreational opportunities for wounded and disabled veterans and servicemembers. These Americans have paid a high price in service to their country. They should be able to count on the ADA to ensure equality and opportunity here at home.

Before today, our commitment to the ADA was a shared one. It would be unfortunate if that were to change under Republican leadership in the House. I call upon my colleagues to ensure that this ill-advised amendment is not included in any bill sent to the President for his signature. These regulations which have not yet been imposed, which the Justice Department has said may be postponed another few months if necessary, are in the spirit of the ADA--they are proper; they are well considered; and they oughtn't to be set aside by lobbyist-driven amendments.

With that, I yield back the balance of my time.

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Mr. NADLER. I, too, rise in opposition to this amendment.

We have had amendments and even bills on the floor in the past that were just as misguided, and they all take the same form or a similar form: either an amendment to say that no fund shall be expended for the Justice Department to argue for this in court or against that in court. That's one form of the amendment, and this is one of those. Or, we've had court-stripping bills: No court shall have jurisdiction to consider an appeal in the case of X versus Y, or no court shall have jurisdiction to consider a case on a subject matter of--whatever.

All of these are wrong and misguided, whatever the merits of the specific claim may be, because they are violations of the separation of powers and of the proper functioning of the different branches of government.

The Justice Department must argue for the executive branch's interpretation of the law and for its opinion as to constitutionality. That's its job. Our job is to enact laws. The judiciary's job is to state what the law is. The executive branch is to enforce the law, and for the Justice Department, on a nonpolitical basis--not dictated, certainly, by Congress; we don't want to politicize the Justice Department--to argue in defense of the Constitution as it sees it. Therefore, this amendment is wrongheaded. An amendment or a bill to strip the court of the ability to make a decision as to constitutionality on a given subject would be just as wrongheaded.

So, regardless of one's feelings on immigration, regardless of whether you think that the Federal Government has the sole power of enforcement and that State enforcement of immigration laws is preempted by Federal law, which is one point of view, which the Justice Department is arguing, or that it is not, which is the other point of view, which is what some States are arguing in court, that's for the Court to decide.

Now, Congress might decide to be very clear and say that this immigration law, whatever it is, does not--we do not wish to preempt State law. We could say that. But interpreting what we have said, if we haven't been clear on it, that's the job of the courts, and, in arguing that, the administration's point of view of the Justice Department.

We should not be politicizing the Justice Department. We should not be using the power of the purse to say that the Justice Department cannot argue in a certain case or argue a certain point of view. And certainly, that's even worse; to say they can intervene in a case but on side A but not side B is a perversion of the separation of powers, and we should not be considering--we should not pass this amendment. It would pervert the separation of powers and the safeguards of our liberty.

I yield back the balance of my time.

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