Department of Justice objects to trafficking legislation provisions and raises constitutional concerns

The Department also objects to the new paragraph (11), which lists as a criterion for ascertaining whether the government in question has made “serious and sustained” efforts to eliminate trafficking “[w]hether the government has made serious and sustained efforts to reduce demand for commercial sex acts and for participation in international sex tourism by nationals of the country.” We object to this language because it is vague and will, by implication, require the United States Government to evaluate itself under this “serious and sustained” standard. The Department prefers the language that was added by the 2005 reauthorization of the Trafficking Victims Protection Act, which evaluated whether countries “adopted measures” to reduce demand, 6. Section 107 Section 107(a) of the Act raises separation of powers and Chadha concerns. Section 107(a) would add a new 22 U.S.C. § 7107(b)(3)(D), which would limit the amount of time that a country could remain on the Tier IT Watch List to two years, “unless the Secretary of State provides to the appropriate congressional committees credible evidence that” the country had taken certain steps to make significant efforts to counter trafficking. That provision further requires that “[s]uch credible evidence” shall be provided to Congress in a report. To the extent that section 107(a) purports to give congressional committees authority to determine whether the Secretary’s decision to exempt a country from the watch list is based on sufficiently “credible evidence,” the provision would give the committees a role in executing the law that the Constitution does not allow. “{O]nce Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter contro! the execution of its enactment only indirectly—by passing new legislation” —that complies with the bicameralism and presentment requirements of Article I. Bowsher v. Synar, 478 U.S. 714, 733-34 (1986); see also INS v. Chadha, 462 U.S. 919, 951-52, 958 (1983). To avoid this concern, we recommend replacing “provides to the appropriate congressional committees credible evidence” with “determines;” and replacing “Such credible evidence” with “Such determination.” Ts Section 108 DOJ opposes the requirement in section 108 to create a database “combining all applicable data collected by each Federal department and agency represented on the Interagency Task Force to Monitor and Combat Trafficking.” The database would contain law enforcement sensitive information, which would prevent the data from being accessible to non-law enforcement agencies, many of which are a part of the interagency task force, Furthermore, such a database would be difficult to create, particularly within the timeframe provided in the statute, because it would require information from multiple agencies that collect data in varying forms and levels of specificity, 8. Section 109 This section authorizes the President to establish an award for efforts against trafficking and directs him to establish procedures for selecting recipients of the award. DOJ opposes this provision, as it interferes with the President’s policy-making authority. HOUSE_OVERSIGHT_012374