Native Species Protection Act

June 21, 2019

When pioneers first came to the Great Plains, they found them 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 dropped to almost 3,000 in 1972.

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

The Utah prairie dog population quickly recovered under the management plan 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 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, 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 in 2017 an appeals court overruled the district court’s decision and returned management authority to the Fish and Wildlife Service..

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.

There are real benefits to protecting endangered species from extinction, but the Endangered Species Act is in serious need of reform. The Native Species Protection Act 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.

Effective Forest Management

June 14, 2019

Passed in 1970, the National Environmental Policy Act forces all federal agencies to go through a complex environmental planning process before they can take almost any action.

Before the Environmental Protection Agency can issue a permit for a new factory, that factory has to go through the NEPA process.

Before the United States Department of Transportation can fund a highway, even a highway built by a state government, that highway has to go through the NEPA process.

And before the Forest Service can implement a plan to maintain Forest Service land, that land management plan has to go through the NEPA process.

Ideally, environmental planning is a wonderful tool. When a community decides to build a new development, they should absolutely study how the new buildings and roads will affect water runoff and air quality.

Unfortunately, the planning process mandated by NEPA creates certain choke points that activists can use to slow down federal projects, often grinding them to a halt. Even routine maintenance on federal land can qualify for the strictest form of NEPA review, the environmental impact statement, which takes an average of two years to complete.

NEPA delays are not the only reason that the Forest Service has $5.2 billion worth of maintenance backlogs on Forest Service land, but it is part of the problem.

Now under President Trump, the Forest Service is looking to streamline that process. They have issued a proposed regulation that would change how the Forest Service classifies certain projects under NEPA. So, for example, “restoration projects” - which include removing diseased trees and reducing overgrown areas - would now receive “categorical exemptions” that do not require a full environmental impact analysis.

NEPA allows categorical exclusions for certain activities that the agency has determined, from analysis and experience, do not have significant environmental impacts and therefore do not require extensive environmental analysis.

This is a common sense reform that will make Utahns safer by making it easier for the Forest Service to do much needed fire prevention maintenance on federal land. Ultimately, however, Congress will have to act to permanently reform this outdated process and I intend to be part of those efforts.

Take Care Act

June 7, 2019

Before he was elected, President Trump was famous for the catch-phrase “you’re fired,” which he popularized on his reality T.V. show “The Apprentice.” And it’s no surprise that it would have so much appeal for a television audience.

It carries a certain power and resonance because the person who has the authority to use it within an organization is, generally speaking, the person who gets to call the shots. It is emblematic of executive control and the ability to get things done. It is the ultimate and essential backstop that enforces and reifies an executive’s power to make decisions.

The Founders placed the totality of executive power in a single individual – establishing a unitary executive, the President, in Article II of the Constitution – precisely because they knew that a unified executive was essential to ensure energy and accountability in the execution of the laws.

And they also understood that the bedrock of the President’s authority to see oversee the executive branch was his removal power.

In a famous debate in the First Congress, James Madison argued that “if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws… If the President should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; [they] will depend, as they ought, on the President, on the community.”

However, over the years, Congress and the courts have deprived the President of the ability to remove his subordinates at will. So today, the President of the United States lacks this essential authority over many high-ranking officers within the Executive branch.

Many of these restrictions take the form of statutory “for-cause removal protections,” such as the provision of the Federal Trade Commission Act that provides that commissioners can be removed only “for inefficiency, neglect of duty, or malfeasance in office.”

In fact, this statute formed the basis of the suit in Humphrey’s Executor, a Supreme Court case that in 1935 held for the first time that Congress can impose restrictions on the President’s removal power, overturning years of constitutional precedent.

Since then, for-cause removal protections – both statutory and otherwise – have proliferated, giving rise to a vast, headless fourth branch of government that exists beyond the control of the President.

There are now more than 80 independent agencies in the executive branch, entrusted with regulating vast swaths of American life – from competition policy and workplace safety to labor relations and securities law. These unelected bureaucrats make rules, adjudicate rights, and enforce laws – all without being held accountable by the President, and therefore by the American people who elect him.

In other words, we today have “regulation without representation.”

That’s why this week, I introduced the Take Care Act. This bill would restore the unitary executive envisioned by the Founders by stripping away all existing for-cause removal protections from the independent agencies. It would also limit Congress’s ability to create for-cause protections by implication in the future and take other critical steps to fortify the President’s directive authority.

Simply put, the Take Care Act would eliminate the headless fourth branch of government, empower the President to ensure faithful execution of the law, and make the bureaucracy accountable again.

The bill would not cause the work of administrative agencies to become subject to the arbitrary whims of the President, however. Political constraints – including the Senate’s advise and consent role – would ensure, as they do now, that executive officers can fulfill their congressionally assigned duties without undue interference.

But it would rescind and limit the unconstitutional restrictions on the President’s removal power. And by restoring the President’s ability to be the final decision maker within the executive branch – and ensuring his ultimate responsibility for executing the laws – we will restore a critical safeguard of freedom for the American people.

Government Spectrum Valuation Act

May 24, 2019

Everyone is aware of how the modern world’s technology has transformed our daily lives in countless ways over the past decades. But most of the time, we don’t think about what is needed to operate that technology: the radio frequency spectrum.

Cell phones, television, radio systems, and a myriad of other technologies function based on this part of the electromagnetic spectrum. And as technology continues to evolve, the radio frequency spectrum is becoming increasingly in demand and increasingly congested.

Unfortunately, spectrum is a fixed resource and cannot be manufactured. So, if we are going to be able to take advantage of future innovation opportunities – and be able to continue operating our current technologies – we need to make sure that spectrum is being managed efficiently.

In the United States, the Federal Communications Commission (FCC) manages spectrum for commercial and noncommercial uses; and the Department of Commerce’s National Telecommunications and Information Administration (NTIA) oversees the federal government’s use of spectrum.

But currently, we don’t know all of the federal government’s spectrum allocations, and we don’t have an estimate of the value of those allocations.

So, while the federal government – and particularly our military – use spectrum for vital purposes, it may be inefficiently using its allocations or have access to more than it needs.

For example, in 2012, the President’s Council of Advisors on Science and Technology (PCAST) found that the federal government has allocated 60% of the “beachfront frequencies” between 225 and 3700MHz – effectively precluding most of these bands from commercial use.

And furthermore, because federal agencies pay such a minimal fee to NTIA for their allocations – absent of a market-based allocation – they have little incentive to share spectrum or make it available for commercial use.

That’s why I introduced the Government Spectrum Valuation Act – a bill designed to make sure that the federal spectrum is being managed efficiently and fairly.

The Government Spectrum Valuation Act would require over the next three years, and every three years thereafter, that the NTIA coordinate with the Office of Management and Budget (OMB) and the FCC to estimate the “opportunity cost”, or fair market value, of electromagnetic spectrum that is allocated to each federal agency. And it would additionally require that each federal agency report the value in their financial statement and in the President’s budget each year.

If we are to meet our nation’s growing spectrum needs, and allow for continued innovation in fields like energy, healthcare, manufacturing and transportation, we need to make sure that the private sector has access to its fair share of the spectrum. The Government Spectrum Valuation Act is a good place to start.

Wild Horses

May 17, 2019

Few images are more iconic than a wild mustang running freely through the open pastures of the mountain West. Unfortunately, the nasty reality of wild horse management doesn’t match that fantasy.

Congress formally recognized the need to protect wild mustangs with passage of the Wild and Free-Roaming Horses and Burros Act of 1971. At the time, many Americans believed some of the methods used to cull horse herds were inhumane and needed to be regulated. The WFRHBA placed wild horses under federal management, making culling or even harassing horses illegal.

The Act also directed the Bureau of Land Management to “maintain a thriving ecological balance” between wild horses, other wildlife, vegetation, and livestock on federal lands. While ranchers, environmentalists, and the federal government didn’t always see eye to eye on the best management practices, the wild horse population maintained a relatively healthy and sustainable level for decades after the law was enacted because of the balancing act.

Then about 20 years ago, a political rider was attached to an annual appropriations bill that significantly limiteding the management tools BLM could legally use to control wild horse populations. Since wild horses have no natural predator, the resulting population boom has been dramatic. While scientists at the BLM estimate that the optimal number of wild horses to maintain ecological balance on federal lands is around 27,000 the BLM currently estimates there are now almost 88,000.

As a result of this population boom, vegetation on Western ranges has been decimated, local elk and deer populations can’t find feed, ranchers are being bankrupted by the costs hay to replace the lost forage their livestock, and the number of starving and diseased wild horses is rising substantially. There is nothing humane about forcing hundreds of wild horses to die of starvation and thirst.

We have all been working in our respective roles and Congressional chambers to bring this crisis to the attention of our colleagues in Washington, D.C.

On the House side, Rep. Chris Stewart, who sits on the appropriations committee, has been working for five years to prioritize funding for the BLM’s wild horse and burro program. Because the bulk of the herd management areas in Utah are in Rep. Stewart’s district, he has become the “wild horse guy” in the House of Representatives. Most recently, he has been working with a broad coalition of interest groups to identify non-lethal tools to manage wild horse herds. This is a historic moment; —never before have these groups come together. It would be shameful to let this moment pass without changing the failing policies.

On the Senate side, Sens. Mike Lee and Mitt Romney sent a letter last week to the Senate Appropriations Committee highlighting the grave threat these unregulated herds pose to themselves, the surrounding wildlife, and local communities. The letter notes that unless the BLM is given the tools necessary to manage these herds, the problem will only get worse, to the detriment of the environment, the local economy, and the American taxpayer.

We appreciate all the work being done on the ground by stakeholders in Southern Utah to bring this important issue to the attention of those on the coasts.

Maintaining the balance between animals, plants, and local communities has always been a contentious issue on federal lands. When it comes to wild horses and burros, we are currently so far out of balance that it will take drastic changes to restore our ranges. But we believe that through effective collaboration, we can restore and then maintain appropriate management methods for the health of both the animals and the rangeland.

This joint oped with Rep. Chris Stewart (R-UT) originally appeared in the St. George News.

Why Are We Bringing Back Beijing’s Bank?

May 10, 2019

Why did the United States Senate revive one of China’s favorite sources of American tax dollars right as President Trump is about to escalate our nation’s trade dispute with the communist government in China?

It just makes no sense.

This Wednesday the Senate confirmed three nominees to the Export-Import Bank, giving the government agency the quorum legally required to authorize loan guarantees larger than $10 million for the first time since 2015.

Created by executive fiat in 1934 to extend lending to Soviet Russia, the Export-Import Bank has a long history of enriching corrupt foreign elites abroad and politically connected big business here at home.

Here is how it works: a large global corporation will give money to the right politicians here in the United States, and those politicians will then direct the Export-Import Bank to guarantee financing for one of the global corporation’s foreign projects. This global corporation is then able to save millions in interest payments when financing its foreign project by securing below-market interest rates thanks to the government guarantee to repay the loan if the project fails.

Rich global elites claim that the loan guarantees made by the Export Import bank are cost-free programs that support middle-class jobs.

But as any honest economist will tell you, there is no such thing as a free lunch. The Congressional Research Service reports that, “Subsidized export financing merely shifts production among sectors within the economy, rather than adding to the overall level of economic activity, and subsidizes foreign consumption at the expense of domestic consumption.”

And which foreigners are benefiting from Ex-Im subsidies? Mostly state-owned foreign airline and energy companies like Mexico’s Pemex and Dubai’s Emirate Airlines.

But for those years when the Export-Import Bank has had a quorum to make loan guarantees over $10 million, the biggest winner has always been the Chinese government. For example, in 2013 the Export-Import Bank backed a $63 million deal to build a semiconductor manufacturing plant in China. How exactly does subsidizing Chinese semiconductor manufactures help save American jobs?

It doesn’t.

And as the last three years have proven, American businesses don’t need Export-Import Bank loan guarantees to compete internationally. Between 2014 and 2018, when the bank was unable to authorize large guarantees, U.S. exports actually rose from $1.7 trillion to $1.8 trillion.

Three board members will have their four-year terms expire in 2021. We will have another shot to stop Beijing’s Bank then, and we should.

Getting NATO to Pay Their Fair Share

April 12, 2019

"Germany is not paying their fair share," President Trump said at a press conference with NATO Secretary-General Jens Stoltenberg last week. "I have a great feeling for Germany, but they're not paying what they should be paying. We're paying for a big proportion of NATO, which is basically protecting Europe."

President Trump is right. Germany is not paying their fair share. In 2014 Germany and the rest of our NATO allies promised to raise their defense spending to 2 percent of gross domestic product by 2024. It is now 2019 and Germany still only spends 1.23 percent of its GDP on defense. By comparison, the United States spends 3.4 percent of GDP on defense.

And Germany is not alone. Not including the United States, NATO members spent only 1.48 percent of their GDP on defense in 2018 and just seven seven of NATO’s 29 member countries currently spend the recommended target of 2 percent of GDP.

With other NATO members defense budgets coming up short, the United States makes up 69 percent of all NATO defense spending despite U.S. GDP comprising less than half of NATO’s overall economy.

Congress can play a role in helping President Trump pressure our NATO allies to pay their fair share. That is why I introduced the Allied Burden Sharing Act last week, a bill that requires the Department of Defense to submit an extensive report that includes the common defense contributions of NATO countries and other defense partners including Australia, Japan, South Korea, New Zealand, Thailand, and the Philippines.

NATO and other mutual defense agreements have a purpose but the United States cannot and should not bear the greatest brunt of the financial burden in global alliances and defense partnerships. The information included in this report would be instrumental in informing lawmakers on the return on investment we receive in exchange for our contributions and commitments.

For security alliances and partnerships to be maximally effective, all parties must pull their weight.

Let Judges Judge

April 5, 2019

Congress passes laws, the executive branch enforces laws, and the courts interpret the law. That is how we were all taught the United States government was supposed to work in civics class.

Unfortunately, the progressive movement has so warped Washington’s understanding of the Constitution that some federal bureaucrats think they have the authority to make law, enforce law, and interpret it.

Witness Joe Pizarchik, President Obama’s director of Surface Mining Reclamation and Enforcement, who ran to Politico after Congress passed a law undoing his Stream Protection Rule, a regulation that would have killed thousands of jobs in coal mining and surrounding industries.

Now when an executive branch agency, like the Interior Department’s Office of Surface Mining Reclamation and Enforcement, writes a new regulation, they do so only because Congress specifically empowered them to do so by an underlying delegation of power, in this case the Surface Mining Control and Reclamation Act of 1977. There is nothing in the Constitution that grants the executive branch the power to regulate the coal industry.

And what power Congress grants the executive branch, it can also take away. So, after President Trump was sworn into office, Congress passed a resolution pursuant to the Congressional Review Act undoing the regulation Pizarchik had created.

Incensed that Congress would dare undo what he had done, Pizarchik told Politico, “I believe there’s a good chance that… a court will overturn Congress’ actions here as unconstitutional usurpation of executive branch powers.”

A “usurpation of executive branch powers”? What powers?!?! The Office of Surface Mining Reclamation and Enforcement is mentioned nowhere in the Constitution and only has whatever powers Congress grants it, and even then Congress is free to take back those powers whenever it pleases.

Unfortunately, the executive branch is not the only one guilty of empowering entitled unelected job-killing bureaucrats like Pizarchik. The Supreme Court’s 1985 Chevron v NRDC decision also helped empower federal bureaucrats at the expense of the other branches. Under Chevron, federal judges must accept a federal agency’s interpretation of a statute when deciding whether or not an agency action exceeded the authority Congress intended to grant that federal agency.

Thanks to this case, with just a minimally clever legal theory, an executive agency can impose on the American people laws that the people’s elected representatives never actually passed. This is not what the Founders intended.

That is why I helped cosponsor the Separation of Powers Restoration Act last week, a bill that would allow judges to look at statutes governing federal agencies fresh, without deferring to the agency’s interpretation of the stature.

Chevron deference is hardly the only problem with our federal bureaucracy, nor is it the biggest. But it is one of the least defensible problems, with a clear and obvious fix.

Dilly Dilly for Farming Fairness

March 29, 2019

“Oh, brewers of Miller Lite, we received your corn syrup by mistake,” a king accompanied by a blue knight emblazoned with “Bud Light” shouts to a man in a castle tower.

“That’s not our corn syrup, we received our shipment this morning,” the Miller Lite brewer replies. “Try the Coors Light castle,” the Miller Lite brewer continues, “they also use corn syrup.”

And with that ten second exchange aired during Super Bowl Sunday, a multi-million dollar plan for a joint beer promotion campaign came to end. For more than a year, Anheuser-Busch InBev, Molson Coors Brewing, Heineken and Constellation Brands had been in discussions over a united television campaign to promote beer consumption in the United States.

But Bud Light’s competitors were so upset over the corn syrup ad that the pulled the plug on the joint beer promotion campaign entirely.

And that is how the free market is supposed to work. Companies are free to work together towards common goals when they want, but they are also free to go their own way if they feel it is in their best interest.

But this isn’t true for all sectors of the economy. Since 1937, the Agriculture Department has forced certain agricultural producers to pay a per-unit fee for each unit of a commodity produced to a government sponsored board made up of government approved producers of that commodity.

The boards then use this money for marketing campaigns and lobbying activities. If you have ever seen a “Got milk?” ad or “Pork, the other white meat,” you’ve seen these corporatist boards at work.

Unfortunately, these programs do not receive proper oversight from the USDA and they have become rife with waste and abuse.

Some boards have used their funds to lobby the federal government against innovative new food products. Others have misused funds and refused to comply with federal transparency laws.

In short, these programs are in desperate need of reform.

That is why I introduced two bills this week to reform these programs. The first, the Opportunities for Fairness in Farming Act (OFF Act) would clarify the prohibition on checkoff program lobbying, prohibit anticompetitive behavior by checkoff programs, and mandate transparency through published audits.

The second, the Voluntary Checkoff Program Participation Act, would simply give farmers and ranchers the freedom not to participate in any government mandated checkoff program.

These common-sense reforms will not be convenient to the giants in the agriculture industry – at least not the ones using checkoff dollars to rig the system in their favor. But they will help farmers – and particularly the little guys – to see exactly where the fees they pay are going and ensure that their hard-earned money is not being used against them.

Lowering Drug Costs by Increasing Competition

March 15, 2019

America has a health care spending problem.

As a nation, we spend double the amount that other developed nations spend on health care and yet our life expectancy is lower than that of many developed nations. Already health care makes up 25% of all federal spending, and in a decade it will make up 33% of all spending. Almost all of our future deficits could be eliminated if we brought health care spending under control.

And of the many reasons health care spending is so high in the United States, almost all of them have to do with excessive government regulations and price controls.

Take insulin, a drug that was invented in 1921, but which American diabetics are paying double for now than what they were paying just 10 years ago. The problem isn’t that companies don’t know how to make insulin; after all, they’ve been making it for almost 100 years. The problem is that the Food and Drug Administration process for approving new generic versions of insulin is much more expensive than it is for other drugs. And it’s worth noting that the FDA process for approving all generic drugs is also generally far more expensive here than in other countries.

As a result, just three pharmaceutical companies manufacture insulin in the United States, and they use every tool at their disposal to make it harder for new generic competitors to enter the market. By using federal law to limit competition, these companies are able to charge far higher prices in this country than their foreign competitors charge in other countries.

It doesn’t have to be this way.

We can begin to bring these high drug prices down for American consumers by lifting some of the bureaucratic red tape that strangles competition. That is why I helped introduce the Short on Competition Act with Sen. Amy Klobuchar (D-MN) this week.

The Short on Competition Act would empower the Secretary of Health and Human Services (HHS) to temporarily allow importation of drugs in markets where there are fewer than five competitors and the FDA has approved a drug’s sale for more than ten years. Eligible countries from which the United States could start importing affordable prescription medications under this bill include Canada, Australia, Japan and members of the European Union.

On its own, this bill is not a comprehensive solution for rising health care costs, but it is a good first step that will demonstrate how lower government regulation and increased competition can help American patients.