[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
THE NATIONAL EMERGENCIES ACT OF 1976
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE
CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
FEBRUARY 28, 2019
__________
Serial No. 116-5
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available http://judiciary.house.gov or www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
37-840 WASHINGTON : 2019
--------------------------------------------------------------------------------------
COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chairman
ZOE LOFGREN, California DOUG COLLINS, Georgia,
SHEILA JACKSON LEE, Texas Ranking Member
STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr.,
HENRY C. ``HANK'' JOHNSON, Jr., Wisconsin
Georgia STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas
KAREN BASS, California JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York JOHN RATCLIFFE, Texas
DAVID N. CICILLINE, Rhode Island MARTHA ROBY, Alabama
ERIC SWALWELL, California MATT GAETZ, Florida
TED LIEU, California MIKE JOHNSON, Louisiana
JAMIE RASKIN, Maryland ANDY BIGGS, Arizona
PRAMILA JAYAPAL, Washington TOM McCLINTOCK, California
VAL BUTLER DEMINGS, Florida DEBBIE LESKO, Arizona
J. LUIS CORREA, California GUY RESCHENTHALER, Pennsylvania
MARY GAY SCANLON, Pennsylvania, BEN CLINE, Virginia
Vice-Chair KELLY ARMSTRONG, North Dakota
SYLVIA R. GARCIA, Texas W. GREGORY STEUBE, Florida
JOE NEGUSE, Colorado
LUCY McBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
Perry Apelbaum, Majority Staff Director & Chief Counsel
Brendan Belair, Minority Staff Director
------
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES
STEVE COHEN, Tennessee, Chair
JAMIE RASKIN, Maryland MIKE JOHNSON, Louisiana,
ERIC SWALWELL, California Ranking Member
MARY GAY SCANLON, Pennsylvania LOUIE GOHMERT, Texas
MADELEINE DEAN, Pennsylvania JIM JORDAN, Ohio
SYLVIA R. GARCIA, Texas GUY RESCHENTHALER, Pennsylvania
VERONICA ESCOBAR, Texas BEN CLINE, Virginia
SHEILA JACKSON LEE, Texas KELLY ARMSTRONG, North Dakota
James Park, Chief Counsel
Paul Taylor, Minority Counsel
C O N T E N T S
----------
FEBRUARY 28, 2019
OPENING STATEMENTS
Page
The Honorable Steve Cohen, Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 1
The Honorable Mike Johnson, Ranking Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 4
The Honorable Jerrold Nadler, Chairman, Committee on the
Judiciary...................................................... 6
WITNESSES
Elizabeth Goitein, Co-Director, Liberty & National Security
Program, Brennan Center for Justice
Oral Testimony............................................... 10
Prepared Testimony........................................... 12
Nayda Alvarez, Landowner and Resident of La Rosita, Texas
Oral Testimony............................................... 30
Prepared Testimony........................................... 32
Jonathan Turley, J.B. and Maurice C. Shapiro, Professor of Public
Interest Law, George Washington University Law School
Oral Testimony............................................... 35
Prepared Testimony........................................... 37
Stuart Gerson, Member, Epstein Becker Green
Oral Testimony............................................... 55
Prepared Testimony........................................... 57
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Item for the record submitted by the Honorable Veronica Escobar,
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties...................................................... 85
Items for the record submitted by the Honorable Madeleine Dean,
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties...................................................... 90
Items for the record submitted by the Honorable Steve Cohen,
Chairman, Subcommittee on the Constitution, Civil Rights, and
Civil Liberties................................................ 106
THE NATIONAL EMERGENCIES ACT OF 1976
----------
FRIDAY, FEBRUARY 28, 2019
House of Representatives
Subcommittee on the Constitution, Civil Rights,
and Civil Liberties
Committee on the Judiciary
Washington, DC.
The subcommittee met, pursuant to call, at 12:21 p.m., in
Room 2141, Rayburn House Office Building, Hon. Steve Cohen
[chairman of the subcommittee] presiding.
Present: Representatives Cohen, Nadler, Raskin, Scanlon,
Dean, Garcia, Escobar, Jackson Lee, Johnson, Gohmert, Jordan,
Armstrong, Reschenthaler, and Cline.
Staff Present: James Park, Chief Counsel, Constitution
Subcommittee; Susan Jensen, Chief Parliamentarian; David
Greengrass, Deputy Chief Counsel; Matt Weisman, Legislative
Director; Patrick Bond, Legislative Assistant; Jacqueline
Sanchez, Legislative Assistant; Robin Chand, Legislative
Assistant; Armita Pedramrazi, Legislative Assistant; Colin
Milon, Legislative Assistant; Devon Ombres, Legislative
Assistant, Alex Lipow, Legislative Aide; Will Emmons,
Professional Staff Member; Madeline Strasser, Chief Clerk;
Julian Gerson, Staff Assistant; Brendan Belair, Minority Staff
Director; Bobby Parmiter, Minority Deputy Staff Director; Jon
Ferro, Minority Parliamentarian; Paul Taylor, Minority Chief
Counsel, Constitution Subcommittee; and Andrea Woodard,
Minority Professional Staff Member.
Mr. Cohen. It is good to have the gavel. The Committee on
the Judiciary Subcommittee on the Constitution, Civil Rights
and Civil Liberties, which is the name it had when the
Democrats were in the majority, and it is the Democrats name
once again, and forever after, so it shall be, will come to
order. Without objection, the chair is authorized to declare
recesses of the subcommittee at any time.
Welcome to everyone to today's hearing on the National
Emergencies Act of 1976. I will now recognize myself for an
opening statement.
I am pleased today to convene the first hearing of this
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties, for the 116th Congress. I look forward to working
with Ranking Member Mike Johnson, and other members of the
subcommittee on the many challenging and pressing issues that
we will be addressing in the months to come.
It is fitting that our first hearing here will focus on the
National Emergencies Act of 1976, and its implications for one
of the core tenets of the Constitution's design, a governmental
structure defined by checks and balances and the separation of
powers, all from the brilliance of James Madison.
The primary function of the Constitution, besides the
Congress, under Article 1, is the power to legislate, including
the power to appropriate funds. As every grade school student,
high school student, law student, is taught, Congress writes
the laws, while the President's job is to enforce them.
We are also taught that Congress has the power of the
purse. If the President wants to spend money for something, he
or she needs to get funding from the legislative branch. That
is Article 1. Unfortunately, President Trump has undermined
those basic principles. After making a campaign pledge to build
a wall along our southern border, 2,000 miles long, and then
promising that Mexico would pay for it--which was simply a
device that his campaign folks gave him to remember to bring up
the issue, and later, it morphed into a policy design--he was
met with a dose of reality. That was that Mexico was not going
to pay for it, and that neither was Congress.
Polls show that the American people do not want to pay
billions of dollars for a vanity project when illegal
immigration is historic lows, when a wall would do nothing to
stop drugs being smuggled into our country, which come through
our ports of entry by about a 90 percent amount, and when
families fleeing violence need an orderly and humane system to
process asylum claims, not a concrete wall.
And there aren't women being duct taped over their mouths,
legs immobilized, sex trafficked into our country. That is pure
fantasy.
That is why earlier this year, Congress rejected the
President's request for $5.7 billion to build a border wall. In
fact, President Trump did not even seriously pursue those
billions of dollars during his first 2 years in office, when
his party controlled both Houses of Congress. But the President
doesn't not like getting his way. That is why 2 weeks ago, in a
petulant action, he invented a so-called emergency to order--to
divert billions of dollars in military construction funds to
build his wall.
As Elizabeth Goitein--right?
Ms. Goitein. Very close, Goitein.
Mr. Cohen. You got it--one of our witnesses, will explain,
this is the only time since the passage of the National
Emergencies Act, that a President has invoked emergency powers
to thwart the express will of Congress.
President Trump's actions undermine the basic separation of
powers. It is not up to him to circumvent the funding
directives that Congress has passed into law using its
exclusive power of the purse. And it certainly is not up to him
to use American taxpayer money to seize land from owners of
private property for a project that Congress has not authorized
him to build. The Supreme Court noted that when Harry Truman
tried to take over the steel industries during the Korean War--
and that was during a war--that he could not do it. It was
illegal use of that power.
Congress, as a co-equal branch, cannot be silent in the
face of this power-grab. I was pleased with the House vote, 245
to 182, on Tuesday to pass a joint resolution to terminate this
so-called emergency. And I hope my colleagues in the Senate put
constitutional principles above party loyalty and Presidential
fealty when they take a vote on this measure in the coming
weeks.
While I believe President Trump's emergency declaration is
legally and substantively without merit, it also raises a
number of broader questions about the National Emergencies Act
and Congress's delegation of emergency authority. That is why
it is important, even though we have had this vote, to have
this hearing, because we need to see what is this act and does
it need to be amended?
The National Emergencies Act was enacted in 1976, in order
to constrain the use of Presidential emergency authorities. It
does not give the President any particular powers, but it sets
forth the process that he has to follow if he declares an
emergency, and the process that we in Congress have to follow
if we want that emergency to end.
The law hasn't worked as intended. President Trump and his
supporters believe that because the NEA, a law setting out a
procedural framework only, does not define what an emergency
is, then the President is free to invent one whenever he
wishes, a la King George. If we accept that view, then not even
common sense, or an English dictionary, or the Constitution
which we swear to uphold, can act as a constraint.
As to the underlying laws that give the President emergency
authorities, a lot of scholars and commentators have pointed
out that we, in Congress, have almost lost track of how many
authorities we have granted to the President, or whether these
grants of emergency authorities remain warranted. Ms.--you are
on----
Ms. Goitein. Goitein.
Mr. Cohen [continuing]. Goitein will describe some of those
laws for us, many of which have never been used. Nonetheless,
they remain on the books, and as Justice Robert Jackson put it
in a famous dissent on a different emergency claim, they,
quote, ``lie about a loaded weapon''--``about like a loaded
weapon,'' unquote.
Tellingly, after President Trump began talking in late 2018
about declaring a national emergency, a lot of lawyers and
scholars spent weeks spinning their wheels, trying to figure
out which laws he was talking about. The President's own Budget
Director told the press about how he and his staff combed
through the U.S. Code, looking for hidden emergency authorities
or other loopholes that allow them to move money around.
The American people deserve better than that. They deserve
to know the President cannot rewrite the law or exploit obscure
loopholes to raid funds that have been allocated by Congress
for different purposes, and particularly, when Congress has
acted at the President's request. The President was going to
accept what Congress gave him and then said no after he heard
from talk show radio hosts.
Then he shut down the government after Congress wouldn't
give him his funds. And then after 3 weeks, Congress voted
together, in a bipartisan fashion, to give him what funds they
thought were appropriate, and then he declared a national
emergency. He basically declared Congress null and void.
So I look forward today to hearing from all of our
witnesses who bring a range of perspectives about these issues.
I hope we can have a productive and fruitful discussion, not
only about President Trump's actions, but about whether we, as
Congress, need to do more to constrain these type of
authorities and amend this law, so they are used only in true
emergencies and not as an end-run around our Constitution.
I now recognize the distinguished ranking member, Mr.
Johnson, from the ``Go Tigers'' State, for his opening
statement.
Mr. Johnson. Thank you, Mr. Chairman. I appreciate you and
all of our colleagues and look forward to working with you all
on the subcommittee this year. And thank you to our witnesses
for being here with us.
Today's hearing on the National Emergencies Act of 1976
takes place at a time in history in which Congress has
increasingly abdicated its legislative powers, over many
decades. It is like having a hearing on puddles right now in
the middle of a hurricane. That is my Louisiana reference for
you.
I would like to use my time today to take a step back and
explore how the polarization of Congress seems to have drawn
both parties, at times, further away from our constitutional
core, and namely that is, what has been referenced, Article 1
of the Constitution.
As a former historian of the House of Representatives,
Robert Remini, has written, quote, ``The Framers of the
Constitution were absolutely committed to the belief that a
representative body, accountable to its constituents, was the
surest means of protecting liberty and individual rights. So
anxious were they to affirm legislative supremacy in the new
government, that they failed to flesh out the executive and
judicial departments in the Constitution, leaving that task to
Congress, and thereby assuring that the legislative and the
legislature would remain control of the structure and authority
of both of those branches,'' unquote.
But today, the separation of powers, so carefully designed
by the Framers of our Constitution, has been greatly obscured.
Let's take a look at more recent history. Just consider the
last 5 years. The first section of the first Article of the
Constitution provides that, quote, ``All legislative powers
herein granted shall be vested in a Congress of the United
States,'' unquote. And then the ObamaCare statute, Congress
provided for clear statutory guidelines for compliance,
including this one regarding the mandates the statute imposes
on employers. Quote, ``The amendments made by this section
shall apply to months beginning after December 31, 2013. Yet,
the Obama administration unilaterally sought to rewrite the
law, not by working with the people's duly elected
representatives, but through things like blog posts, where they
removed penalties for employers who could--who would otherwise
be required to provide insurance coverage for their employees.
They did it through regulatory fact sheets, which created
an entirely new category of businesses and exempted them from
their responsibility under the law. They used things like
letters, which specifically explain that people would have to
have their health insurance terminated under ObamaCare, of
course, in violation of President Obama's famous promise that
if you like your healthcare plan, you can keep it.
And then they claimed to suspend the law's insurance
requirements to a date uncertain. This--this one letter alone
referenced there, suspended the application of eight key
provisions of the ObamaCare law. And why was this done? To
delay the terrible consequences of ObamaCare until after the
next election cycle.
The Obama administration also admitted to using Federal
taxpayer money to pay subsidies to insurance companies under
Section 1402 of the Affordable Care Act, even though
appropriation for such payments were never made by Congress, in
violation of Article 1, Section 9, Clause 7 of the
Constitution, which expressly states, quote, ``No money shall
be drawn from the Treasury but in consequence of appropriations
made by law,'' unquote.
When it submitted its fiscal year 2014 budget to Congress,
the Obama administration correctly recognized it could not make
Section 1402 offset program payments to insurers unless and
until Congress specifically appropriated funds for that
purpose.
In July 2013, the Senate Appropriations Committee declined
to approve the administration's request. In fact, neither the
House, nor the Senate, ever adopted a bill approving the
administration's request, and no bill containing an
appropriation to fund that section was presented to the
President for his signature or veto.
Congress also didn't appropriate funds for Section 1402 for
fiscal year 2015, and yet, the administration went ahead and
funded the insurance subsidy program anyway. Notwithstanding
the lack of any appropriation for that section, either in
ObamaCare, in that law, or in fiscal year 2014 appropriations
bill, the Obama administration unilaterally began making such
payments to insurers in January 2014 and continued making them
thereafter.
One of the witnesses here today, Professor Jonathan Turley,
challenged the rank unconstitutionality of those unilateral
executive actions on behalf of the House of Representatives,
and it led to a Federal District Court ruling that said, quote,
Neither the President, nor his officers, can authorize
appropriations. The assent of the House of Representatives is
required before any public moneys are spent. Congress's power
of the purse is the ultimate check on the otherwise unbounded
power of the executive.
The genius of our Framers was to limit the executive's
power by a valid reservation of congressional control over
funds in the Treasury. Disregard for that reservation works a
grievous harm on the House which is deprived of its rightful
and necessary place under the Constitution.
Judge Collier ultimately ruled in favor of the House on May
12, 2016, and found that the Obama administration violated the
Constitution in committing billions of dollars from the U.S.
Treasury without the approval of Congress.
The Trump administration subsequently ended that
unconstitutional funding program. Then November 2014, President
Obama unilaterally and unconstitutionally created a program
that would suspend immigration laws for millions of people who
are in this country illegally without authorization by
Congress.
The President urged Congress to enact a statute to create
such a program under law, but Congress did not, even when his
party controlled both Houses of Congress. And despite claiming
the situation was urgent, he didn't act unilaterally until
November 2014. Whether or not the President delayed action
until November 2014 for political reasons, he knew the actions
he ultimately did take were unconstitutional.
And we know that from his many public statements in which
he himself directly addressed the issue of the lack of legal
and constitutional authority to do what he ultimately did, that
he recognized it as well. He said, in his own words at one
point, he changed the law.
Now, all that happened without any protest from the other
side of the aisle, even though both sides of the aisle work
together here under the same Capitol dome, and we share the
same legislative powers under Article 1. But today, here we are
having a hearing on President Trump's exercise of clearly
delegated authority under a statute that was duly enacted by
Congress. We can debate the policy merits of the authorizing
statute, but there is no doubt the National Emergencies Act of
1976, and related Federal statutes, constitute a clear
delegation by Congress of parts of its appropriation powers to
the President, subject to the President's declaration of a
national emergency, which is a term that is left to the
President alone to define.
There is a crisis at the border, and everyone at some point
or another has acknowledged that. And the President has the
authority to address that crisis under a Federal statute that
is duly enacted by Congress. I would just say this in closing.
It is time to drop the politics and pick up our principles.
We, in Congress, must rediscover the principle basis for
our Article 1 powers. Until we do that, we will move in
partisan fits and starts, one day in this direction, next day
in that direction, and we will discover one day that we are not
moving forward, but rather in circles, down a whirlpool that
erodes our legislative powers, spinning with increasing speed
in smaller and smaller circles.
I hope this hearing can help right our ship, and help
provide us a principled anchor as Congress moves ahead. I look
forward to hearing from all of our witnesses here today, and I
yield back.
Mr. Cohen. I thank the gentleman from Louisiana for his
statement, and I now recognize the chairman of the full
committee, the Honorable Jerrold Nadler of New York for his
opening statement.
Chairman Nadler. Thank you, Mr. Chairman, and thank you for
convening this hearing on this important topic. I would also
like to thank all of the witnesses for appearing here today.
I am heartened by the fact that their opposition to
President Donald Trump's emergency declaration comes from
across the political spectrum, because ultimately, this debate
should not be about partisan politics. It should be about
protecting a principle that is fundamental to our
constitutional democracy. Namely, that the Chief Executive
cannot unilaterally spend taxpayers' money or redirect funds
appropriated by the people's representatives.
Article 1, Section 9 of the Constitution makes it
unmistakably clear that, quote, ``No money shall be drawn from
the Treasury, but in consequences of appropriations made by
law,'' closed quote. President Trump violated that basic
command when he invented a so-called emergency as an excuse to
build a wall that Congress explicitly rejected. The only
emergency is the fact that Congress refused the President what
he wanted. That kind of bad-faith action by the President is a
violation of his oath of office to defend the Constitution, and
to faithfully execute the law.
In addition, the emergency law that President Trump invoked
allows the military to redirect funds only if an emergency,
quote, ``requires used of the armed forces,'' closed quote. And
those funds can be used only for construction projects that
are, quote, ``necessary to support such use of the armed
forces,'' closed quote. This law is supposed to be for action
such as building airfields or barracks to help our troops fight
wars overseas.
A war, however, cannot possibly be, quote, ``necessary to
support,'' unquote, a military operation on the border, because
the Posse Comitatus Act and related laws expressly prohibit the
military from engaging in law enforcement activities. The
military, therefore, cannot enforce our immigration laws or our
drug-smuggling laws. That means the President's actions are
doubly unlawful.
There is no real emergency, and even if there were one, the
President could not redirect military funds for a purpose
expressly prohibited by law to the military.
This past Tuesday, the House passed a joint resolution to
terminate this so-called emergency. That was an important first
step in reasserting Congress' role as a check against President
Trump's unlimited appetite for power. And I hope that my
colleagues in the Senate, particularly those on the other side
of the aisle, will take a hard look at the bigger principles at
stake, including their own role in our constitutional system,
when they go to cast their votes.
And let me paraphrase, I think it was Senator Rubio, if
today, the so-called emergency is--is at the border, tomorrow
the emergency could be climate change or guns. We actually have
a gun emergency in this country. What would you say if the
President declared an emergency and said, we are going to
collect all the guns in the country and melt them down the way
they did in Australia? I would say that was unconstitutional.
But the people who uphold this emergency use of the--this
emergency power now would have to say, to be consistent, that
that was a proper use of the President's emergency power. No
President should have that kind of unlimited power. That is
what is at stake here.
But this hearing is about more than debating the legality
or the merits of the President's February 15th emergency
declaration. His decision to invoke the so-called emergency
authority should give all of us great pause. Because those
authorities go beyond the ability to redirect funds in order to
build a wall.
The National Emergencies Act, which regulates the process
by which the President can declare an emergency, was enacted by
Congress in 1976, in order to curtail certain abuses of the
emergency authorities that had come before. The Act provides a
general framework through which the President can declare
national emergencies, and through which Congress can review and
terminate them.
Importantly, at the time the law was enacted, it allowed
Congress to terminate any emergency by a majority vote in both
Houses. But in 1983, the Supreme Court held that Congress
cannot veto actions taken by the executive branch, through
majority votes in the House and Senate. Instead, if Congress
wants to override the President's actions, it has to pass a new
law, which means it has to get the President's signature or
pass the law with veto-proof majorities.
Consequently, in 1985, Congress amended the National
Emergencies Act to be consistent with that ruling.
Unfortunately, in doing so, Congress abdicated a substantial
amount of its constitutional power to constrain the President.
The bottom line now is that if the President declares an
emergency and we in Congress do not like it, we either have to
convince the President to sign a joint resolution to terminate
his own emergency declaration, an unlikely occurrence, or we
need a veto proof majority, which is very difficult to muster.
As to President Trump's bogus emergency, I think on
principle that every Member of the House and Senate should vote
to terminate it. The administration can scarcely tell you with
a straight face that there is an emergency on the southern
border. Take the partisan politics away, and this would not be
a close call.
But whether we are addressing this so-called emergency or
some future emergency declared by some other President, it
should not take a super majority of Congress to stop the
President from abusing power that has been delegated to address
urgent circumstances.
As Elizabeth Goitein will describe, there are numerous
emergency statutes that give the President a broad range of
potential authorities, including the ability to bar certain
exports or even potentially to take control of communications
networks. All of which could be subject to abuse by a President
who does not respect the rule of law.
We may agree that the President should be allowed some
types of discretion during true emergencies, but an emergency
cannot continue forever. So to shift the burden of inertia, we
should consider legislation that would set a time limit for
emergency--for emergency, requiring that they automatically
expire after a short period, say, 10 days, unless Congress
ratifies the emergency declaration by law. This type of sunset
provision--and I emphasize, it should be in the days, not the
weeks--would restore the authority and the responsibility to
change the law to where it belongs, in Congress.
We should also consider separating out which so-called
emergency statutes are designed for true emergencies, and which
ones use that term to describe other contingencies that may
call for particular responses within the executive branch, but
which do not involve truly urgent circumstances.
I recognize we will not solve all these issues today, but I
am eager to begin this important dialogue. I thank the
witnesses for their participation. I look forward to their
testimony. I yield back the balance of my time.
Mr. Cohen. Thank you, Mr. Nadler.
I am going to introduce the witnesses, but I like to
introduce them individually before they speak, rather than as a
group. So I will--first, I think before we introduce Ms.
Goitein, we are going to ask all of the witnesses to stand and
be sworn as has become a custom in our committees.
Do you swear or affirm under penalty of perjury that the
testimony you are about to give is true and correct to the best
of your knowledge, information, and belief?
The Witnesses. I do.
Mr. Cohen. Great. Thank you. Let the record show the
witnesses----
Mr. Johnson. Point of parliamentary inquiry.
Mr. Cohen. Yes, Mr. Johnson?
Mr. Johnson. I think we left out the phrase ``so help me
God.''
Mr. Cohen. We did.
Mr. Johnson. Could we have the witnesses do it again for
the record?
Mr. Gerson. I accept the amendment.
Mr. Cohen. Yeah, they want to do it, but some of them don't
want to do it. And I don't think it is necessary, and I don't
like to assert my will over other people.
Mr. Johnson. Well, it goes back to our founding history. It
is been part of our tradition for more than 2 centuries, and I
don't know that we could abandon it now. Could I ask the
witnesses if they would--if they would choose to use the
phrase?
Chairman Nadler. Mr. Chairman.
Mr. Cohen. Mr. Nadler.
Chairman Nadler. If any witness objects, he should not be
asked to identify himself. We do not have religious tests for
office or for anything else, and we should let it go at that.
TESTIMONIES OF: ELIZABETH GOITEIN, CO-DIRECTOR, LIBERTY &
NATIONAL SECURITY PROGRAM, BRENNAN CENTER FOR JUSTICE,
WASHINGTON, D.C.; NAYDA ALVAREZ, LANDOWNER AND RESIDENT OF
LEGISLATIVE ASSISTANT, ROSITA, TEXAS; STUART GERSON, MEMBER,
EPSTEIN BECKER GREEN, WASHINGTON, D.C.; JONATHAN TURLEY, J.B.
AND MAURICE C. SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW, GEORGE
WASHINGTON UNIVERSITY LAW SCHOOL, WASHINGTON, D.C.
Mr. Cohen. We will proceed, introduce the first witness.
Mr. Johnson. Glad it is noted for the record.
Mr. Cohen. Ms. Elizabeth Goitein is a codirector of the
Brennan Center for Justices, Liberty, and National Security
program. She is the author of numerous articles and reports
regarding national security and civil liberties. She is also
the author of an extensive piece in the January/February issue
of The Atlantic, titled, What the President Could Do If He
Declares a State of Emergency.
Before coming to the Brennan Center, Ms. Goitein served as
counsel to Senator Russ Feingold, then the chairman of the
Constitution Subcommittee of the Senate Judiciary Committee,
and as a trial attorney in the Federal programs branch of the
civil division of the Department of Justice. Ms. Goitein
received her J.D. from Yale Law School and clerked for the
Honorable Michael Daly Hawkins on the U.S. Court of Appeals for
the Ninth Circuit.
She received her B.A. in history from Yale and a Masters of
Music degree in oboe performance from the Julliard School.
Welcome, and we would like to hear your testimony, and you have
5 minutes to give us.
TESTIMONY OF ELIZABETH GOITEIN
Ms. Goitein. Chairman Cohen, Ranking Member Johnson, and
members of the committee, thank you for this opportunity to
testify on behalf of the Brennan Center for Justice.
President Trump's declaration of a national emergency to
build a wall along the southern border is an unprecedented
abuse of emergency powers. The President declared this
emergency for the stated purpose of getting around Congress,
which had repeatedly refused his request for funding to build
the wall. No other President has used emergency powers in that
way.
Emergency powers are not meant as an end-run around
Congress. They are simply standby authorities that Congress has
passed in advance, recognizing that true crises often unfold
too quickly for Congress to respond in the moment. They are
akin to an advance medical directive, in which a person
specifies what action a doctor can take in an extreme situation
where the patient might not be able to make her wishes known.
A President using emergency powers to thwart the will of
Congress, in a situation where Congress has had ample time to
express that will, is like a doctor relying on an advance
directive to deny life-saving treatment to a patient who is
conscious and clearly asking to be saved.
Congress passed the 19--sorry. Congress passed the National
Emergencies Act in 1976 to try to prevent abuses of emergency
powers. The law provided that states of emergency would expire
after a year unless Congress renewed them--I am sorry--unless
the President renewed them. It allowed Congress to terminate
states of emergency without the President's signature, using a
so-called legislative veto, and it required Congress to meet
every 6 months while emergencies were in effect to consider a
vote on whether to end them.
The law has not proven to be the check that Congress
intended. Expiration of emergencies after a year, which was
supposed to be the default, has become the exception.
Presidents routinely renew states of emergency for years on
end. The Supreme Court, in 1983, held that legislative vetoes
were unconstitutional, so now it requires a joint resolution
signed by the President, or passed over the President's veto,
for Congress to terminate a state of emergency. And Congress
has simply ignored the requirement to meet every 6 months to
review existing emergencies.
In addition, when Congress passed the Act, it didn't
include a definition of national emergencies. The legislative
history makes clear that this omission was not intended to give
the President unlimited discretion. But the fact remains that
there are no clearly articulated standards in the law.
Recognizing the unprecedented nature of this emergency
declaration, the House has voted to terminate it. The Senate
should do the same. And if the President vetoes the bill,
Congress should override the veto. All of the witnesses here
today agree on that point.
The courts should also play their constitutional role.
While the National Emergencies Act gives the President
tremendous discretion, even the broadest of discretion can be
unlawfully abused.
But these responses are not enough. We have now seen how
the permissive legal scheme for national emergencies can be
exploited. The next time the stakes could be even higher. The
Brennan Center has cataloged 123 statutory powers that are
available to the President when he declares a state of
emergency. These include some incredibly potent authorities,
including the power to take over or shut down communications
facilities, to freeze Americans' bank accounts, or to detail
members of the U.S. Armed Forces to any country.
Congress should act now to pass commonsense reforms that
preserve the President's flexibility in a true crisis, while
better safeguarding against abuse. I made six recommendations
in my written testimony, and I will just flag the top two here.
First, Congress should clarify that an emergency involves
significant changes in factual circumstances that pose an
imminent threat to public health, public safety, or other
important national interests. This definition would leave the
President with plenty of discretion, just not a blank check.
Second, Congress should vote that an emergency should end
after 30 days, or 10 days, if Congress doesn't vote to continue
it. This, again, would give the President ready access to
enhanced authorities when he needs them most. But when Congress
has had time to act--and Congress can act very quickly in the
face of real emergencies--at that point, it should be up to
Congress to decide whether emergency powers should be used.
In short, it is past time for Congress to reassert itself
in its constitutional role as a coequal branch of government,
and, again, that is something all the witnesses here agree on.
[The statement of Ms. Goitein follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Ms. Goitein.
Now we have Ms. Nayda Alvarez, who is a teacher, a mother,
a grandmother, and a border land owner. Her family has lived
along the border in Starr County, Texas, for at least five
generations. She has received letters from the U.S. Government
indicating its intention to take her property for construction
of a border wall that would cross her backyard. There is a 5
minutes, and I think you have got green, you are go, yellow,
you are getting close to ending, and red, over. Thank you, Ms.
Alvarez, we appreciate your attendance and testimony.
TESTIMONY OF NAYDA ALVAREZ
Ms. Alvarez. Good afternoon. Thank you, Chairman Cohen,
Ranking Member Johnson, and Members of the committee for
inviting me here to share my story. My name is Nayda Alvarez. I
live in Starr County, Texas, in an area known as La Rosita. My
backyard extends to the Rio Grande River, which forms the
border between Texas and Mexico. I am here today to testify
that there is no emergency where I live, and there is no good
reason for the government to take my property to build a wall
in my backyard.
My family has lived on land along the Rio Grande River in
Starr County for at least five generations. I have lived on
this land for more than 40 years. My father lives next to me,
alongside the land where my grandfather lived. We still use a
wooden corral built by my great grandfather for keeping farm
animals. My grandchildren and nieces and nephews play in the
same places where their parents played and where I played as a
child, along with my siblings and cousins.
In more than 40 years of living on the border, I can't
remember ever seeing migrants from Mexico come across my
family's property. To do so, they would have to cross the
river, and then they would have to climb up the soft bluff that
runs alongside the river at the end of my property. The river
and the bluff create a natural barrier on my family's property,
a natural barrier between Mexico and my land in the U.S.
Because it is my property and my family's property next
door, it is not an area where migrants cross the border. We
were surprised in September 2018, we received letters from
Customs and Border Protection asking for permission to come
onto our land to survey and take soil samples in anticipation
of building a border wall across our property. We did not grant
permission.
In November 2018, another letter was hand-delivered to us.
In January 2019, we received a third round of letters, stating
the United States Government is going to take us to court to
take our property, to build a border wall across our land. The
government sent maps that show a wall and a maintenance road to
be constructed feet from the back of my house. This described a
150-foot-wide enforcement zone between my house and the river,
but the river's only about 200 feet from my house. And the land
closest to the river is unstable and subject to erosion. How
will my house survive?
In January, using a telephone number provided in the
January letter, I called a U.S. Army Corps of Engineers realty
specialist to ask how they would possibly fit the border wall
and enforcement zone between my house and the river. The person
I spoke to told me that they were going to build the wall if
they got money in 2019, even if they had to squeeze it in
there.
Even if my house is spared, it will never be the same. I
will lose my entire backyard, and I will be staring at a wall
right outside my back door and windows. My family's property
next door, where we enjoy family gatherings, raise animals, and
enjoy nature, will be divided by the wall, with about two-
thirds of the land on the south side of the wall.
Because Congress would not appropriate the funds to build a
border wall, the President declared a national emergency to try
to build a wall anyway. The President's end-run around Congress
is unlawful, as my lawyers at Public Citizen have explained in
a lawsuit filed against the President on the same day he issued
his emergency declaration. While my lawyers will argue the
legalities of the President's action, the bottom line for me is
that the Federal government is threatening to take my land to
fulfill a campaign promise, but without any need.
I can tell you that there is no invasion in Starr County,
no emergency, no need for a wall across the land. I live on a
peaceful stretch of property along the river in South Texas in
the United States of America. No drugs, no gangs, no terrorists
come across my property. There is no need for a wall on our
land. My family should not have to sacrifice our ancestral home
to a campaign slogan.
We are going to lose our land, our privacy, and our way of
life. Thank you, again, for granting me this opportunity to
testify. I am ready to address any questions you may have.
[The statement of Ms. Alvarez follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Ms. Alvarez. We appreciate your
attendance and your testimony.
Mr. Jonathan Turley, another individual with a Louisiana
background--although he is a greeny, not a ``Go Tiger''--has a
J.B. and Maurice C. Shapiro, professor of public interest law,
and the George Washington University School of Law. Nationally
recognized legal scholar, has written extensively in areas
ranging from constitutional law to legal theory to tort law.
In addition to being the author of over three dozen
academic articles, he served as counsel in many notable cases.
Among those was his representation of the House in 2014, in its
constitutional challenge to certain implementation decisions
made by the Obama administration with respect to the Affordable
Care Act.
He is also a star of stage, screen, and television--at
least the latter. Professor Turley received his B.A. from the
University of Chicago and his J.D. from Northwestern. In 2008,
he was given an honorary doctorate of law from John Marshall
Law School for his contribution to civil liberties in the
public interest.
We appreciate your attendance and welcome your testimony.
TESTIMONY OF JONATHAN TURLEY
Mr. Turley. Thank you, Chairman Cohen, Ranking Member
Johnson, Chairman Nadler, and the members of the subcommittee.
It is an honor to appear before you today to talk about this
very important issue, involving the National Emergencies Act of
1976.
As some of you know from my background, I am an unabashed
and unapologetic Madisonian scholar, and for that reason, I
tend to favor Congress in fights with the executive branch, and
indeed, I often appear before members of this committee, like a
broken record, warning Congress that it is frittering away its
authority to an expanding executive power.
Like my testimony, most the testimony of the scholars along
those lines have been ignored. The National Emergency Act is
the archetype for this long acquiescence of this body.
Originally portrayed as an effort to restrict Presidential
power, it ultimately was passed as a unfettered grant of
authority, to allow declarations to occur with little check of
this body.
This Congress has also tied that type of unfettered
authority to a history of appropriations that often placed few
conditions on funds given to the executive branch. The result
is the long and, frankly, irresponsible history that led us to
this problem.
Although I disagree on a policy level, with the declaration
in this case, it doesn't matter. This problem is the making of
Congress, not the President. Courts are not designed to protect
Congress from itself. The National Emergencies Act was a case
of snatching defeat out of the jaws of victory. Twenty years
earlier, this body prevailed in Youngstown Sheet & Tube
Company. It was one of the most important rulings ever to come
down for the legislative branch.
In that opinion, Justice Jackson warned that the type of
emergency powers being claimed by President Truman would be a
pretext for authoritarian rule, and that emergency powers,
quote, would tend to kindle emergencies.
This Congress responded 20 years later by creating a law
that allowed that very problem to occur. There is an old adage
that the road to hell is paved with good intentions, and if
that is true, this body stopped to pass the NEA on the way. It
started by saying it wanted to restrict the President's power,
but through a series of amendments I go through in my
testimony, what came out was basically an unfettered grant of
authority.
The result has not been surprising. We have had more than
one national emergency declared every year since the NEA is
passed. It would be funny if it was not tragic for this body
and its inherent constitution. Even express provisions in the
law, like this body meeting every 6 months to review emergency
powers, simply ignored. This body hasn't done it once, because
it was too inconvenient apparently or burdensome.
Now, if you sense a sense of frustration, then you are
picking up the truth about how I view this problem. Congress
created a law that gave unfettered authority. Congress can
rescind that law. Congress can rescind emergency declarations.
A court is unlikely to do it. There are two possible
challenges to the current declaration by President Trump. One
is a source of authority, and one is the source of the funds.
The source of authority, which occupies much of the multistate
complaint, I am afraid, is not a very promising attack on this
problem. They are unlikely to prevail.
I can put it no more bluntly than this. This is a national
emergency because the President says it is. Because you gave
him that authority. That may seem superficial and simplistic,
but the NEA is superficial and simplistic. I don't see how a
court is going to substitute its authority as to what an
emergency is, when the law itself doesn't even define it.
As for the source of the funds, there is a simple math that
leads to a simple problem. This body gave the President roughly
$1.4 billion. We can debate as to how that can be used. The
administration has identified multiple sources that would bring
up the available funds to $8 billion. Even if a court was to
enjoin two of those different sources of funding, it would
still be over the $5 billion that the President originally
sought. So it is unlikely, in the long-term, that a challenge
will stop this construction.
Let me end by saying that Oliver Wendell Holmes once said
that if my fellow citizens want to go to hell, I will gladly
help them. It is my job. Well, this body has been hell-bent for
a long time. And you are not going to be rescued from that
direction by a Federal court. It will send you along your path,
a long chosen road towards institutional obsolescence.
I hope that this hearing, instead of focusing on the
lawsuit which I think is not particularly promising, will look
at correcting this law, and regaining the authority that this
body unwisely frittered away in 1976.
[The statement of Mr. Turley follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Mr. Turley. Appreciate it, Professor
Turley.
Finally, we have Stuart Gerson, who is a member of the law
firm of Epstein Becker & Green. His practice has centered on
providing representation to clients in the healthcare industry
particularly. He has had a long and distinguished career
serving both as acting attorney general and assistant attorney
general for the civil division during the administration of
President George H.W. Bush.
He also served as an advisor to several Presidents,
including serving on the transition team of President George W.
Bush.
He received his J.D. from Georgetown University Law Center,
and his B.A. from Pennsylvania State, Penn State. He is not as
commonly on television as Mr. Turley, but he started with the
team of Tribe and Gerson as TV personalities. We welcome Mr.
Gerson.
TESTIMONY OF STUART GERSON
Mr. Gerson. Thank you, Mr. Chairman. Chairman Nadler,
pleasure to see you again. Mr. Chairman, Ranking Member
Johnson, and I especially give a nod towards Ms. Escobar, whose
home county is my client in the litigation that Professor Tribe
and I are sharing, and which doesn't bear the characteristics
criticized by Professor Turley.
I am a life-long Republican. I have been a Republican
longer than some of you have been alive. And I am a
conservative Republican, and I enjoy the support of a lot of
conservatives with respect to the position that I am taking
today. Indeed, I would take that very position if I agreed with
President Trump with respect to his desire to build a
contiguous border wall. I don't. I am a tech wizard and know a
lot about what DARPA has done since Vietnam in creating
technical means, and I like those a lot better.
But I don't favor open borders and I don't know anybody
here that does either.
And so I am here as an advocate for the Constitution, and,
in fact, I agree with 95 percent of everything that I have
heard from everybody so far. And I expect that to continue.
Mr. Johnson, Professor Turley and I disagree as to one
point and that is with respect to the ability of a neutral, of
a judge, to determine an emergency. But in terms of the
history, we don't disagree at all, and I was as much a critic
of acting contrary-wise to Congress by the executive in the
previous administration as I am presently. As I say, even if I
agreed with the President, I would have the same position.
Your job is to revisit the Act, and I am hopeful and expect
that you will do it, and in so doing, that the Congress will
stop acting like a parliamentary body, and will act as what
James Madison, Alexander Hamilton, and the other Framers
intended, which was an adversary to the executive branch.
This goes back, even in my lifetime, to the 1940s, and it
has been a continuous trend. And I say that as somebody who
represented the first Bush administration arguing in court all
the way up to the Supreme Court about the President's war
powers. Different from what we have here, but certainly this
entire case cries out for the definition of what constitutes an
emergency, where a President can act, and for how long.
Why I think a neutral will be able to decide this question,
notwithstanding my full agreement with Professor Turley that
the Act, as currently written, looks like a turducken, if I can
give you a Louisiana reference, you know, things slapped on one
another, eliminating old emergencies that persisted for years.
But the reason why I think that a court will be able to do
that is that I don't think you can be the referee of your own
game. And I don't think that using just the textualist tools
that I believe are proper, when I support the judicial nominees
of this administration, which I generally do, that
``emergency'' requires a definition. It is got to be an
exigency of some kind, unplanned, sudden, that requires action
in a time frame too short for the two political branches to
confer and to act. That is similar to what other witnesses have
had to say.
One can argue about the language, but I think we know what
an emergency looks like when we see it, if I can paraphrase
Justice Stewart. And that is what I am asking you to do. As far
as the litigation goes and our ability to challenge the Act, I
am comfortable with the positions that we are taking. It is a
coalition of organizations left, right, and center. None of us
views it as--as political. It is simply that we believe that it
is constitutionally impermissible for the President to take
action in what really is a nonemergency, when the Congress has
already spoken and told him not to do the very thing that he is
doing.
Like in a sport, the Constitution intended that there be
winners and losers, and something ends a particular dispute. In
this case, what should have happened was that Congress should
have had, not only the last word, but the definitive word. I am
happy to answer your questions, I respectfully ask that my
prepared testimony be made part of the permanent record of this
hearing.
[The statement of Mr. Gerson follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Mr. Gerson. All of your prepared
testimonies will be part of the permanent record, and we
appreciate your testimony.
We will now proceed under the five-minute rule for
questions, and I will begin, recognizing myself.
Ms. Goitein, you gave us two of the ways you thought we
should change the law. The first one had to do with clarifying
it was a significant change, and--and the second one was the
idea that it ended after a certain number of days, 10 or 30 or
whatever. Can you tell us--you had some others in your
testimony--can you go over those quickly? And then I would like
to ask Mr. Turley and Mr. Gerson to comment on your proposals.
Ms. Goitein. Sure. Thank you for the question.
My third recommendation was that Congress could renew
states of emergency on a periodic basis up to 5 years. After 5
years, it can no longer be called an emergency. It has become a
new normal of sorts, and at that point, Congress should be
passing permanent laws, or laws potentially with sunsets, in
order to address the phenomenon rather than pretending that it
is still an unforeseen circumstance that is going on.
The fourth recommendation I made is, right now, under the
National Emergencies Act, when the President declares an
emergency, he has access to any of the statutes that are
available during a national emergency, even if they are
facially irrelevant to the nature of the emergency. There is no
requirement in the Act that there be some kind of connection.
Now, a few of those laws, like 10 U.S.C. 2808, have some
additional language that cabins how they can be used. Most of
them do not. And there is no reason for that, and it invites
abuse. So the law should clarify that emergency powers can only
be used to address--for the purpose of addressing that
emergency and not for any other emergency.
Fifth, the law should make clear that emergency power can
never be used as an end-run around Congress. So if the current
Congress has had an opportunity to consider and vote on the
circumstances that lead to the emergency declaration, then the
President cannot introduce a national emergency to get around
what the current Congress has decided.
Finally, there should be greater transparency in terms of
how Presidents are using emergency powers. Right now, the
President has to report every 6 months on expenditures related
to the emergency. These reports have been filed. Since 2003,
they have gone missing. I think Congress is getting them, but
they are not publicly available.
There should be a requirement, first of all, that the
reports be made public; and, second, that the reports cover not
just expenses, but the details of what activities and what
programs have been put in place, with classified annexes where
necessary. So those are my recommendations.
Mr. Cohen. Thank you. First, let me ask you this. On your
first recommendation, it was that they are significant--only if
exists significant change in factual circumstances and pose an
imminent threat to the police powers, or pressing national
interest. The President could say that there is a factual
change on the border, and if he did such, how does that first
recommendation, how would that interface with our current
circumstance?
Ms. Goitein. In the current circumstance, I believe the
only change that he has pointed to, as a factual matter, is
that there are more families coming to the border seeking
asylum. And, of course, these individuals are coming to make
claims they are entitled to make under the law, and they are
seeking lawful entry into the United States. So that is not
contributing to the problem of unlawful migration, which he
cited as the emergency in the declaration. He hasn't cited any
change in circumstances, any unforeseen developments, which is
what an emergency is, other than that one.
Mr. Cohen. Well, isn't he--and maybe you are right and I am
missing it in his official declaration, but in his--in his
verbiage, he has talked about drugs pouring in, and he has
talked about the women being bound and taped and you name it.
And that is something new, I think. And so new that it doesn't
exist, but it is new.
Ms. Goitein. It is new that he is talking about it. I think
what we have to understand is that a problem is not the same
thing as an emergency. Even a very serious problem is not the
same thing as an emergency. ``Emergency'' has a meaning. It is
not that obscure a word. And it does relate to unforeseen,
sudden changes in circumstances that require an immediate
response.
Most of the things the President has talked about--drugs,
unlawful border crossings, crime--are things that if you look
at the government's own statistics, they are not getting worse.
If anything, they are getting better.
Mr. Cohen. Thank you.
Professor Turley, what are your thoughts about her five
recommendations, and do you have any others that are in
addition to that?
Mr. Turley. Well, I--I think it might--I haven't really
looked very closely at the recommendations by my fellow
witness, but I would put up a cautionary flag that you should
not try to write with such specificity, that you turn this into
an endless form of litigation, and debate over the meaning of
what is a problem, what is an emergency. You can define
``emergencies.''
But I think the key failure of the NEA is that this body
doesn't have to take an affirmative act to allow an emergency
declaration to continue. As I say in my testimony, originally,
the bill had that in it. Originally, the Congress did the right
thing and said that after a certain period, we have to
affirmatively agree that there is an emergency, and for it to
continue. So without that agreement, it is a dead letter. That
was removed at the insistence of the Ford administration. That
could solve a lot of these problems. You wouldn't have to get
into all of the weeds as to, you know, what type of conditions
are going to trigger what type of provisions.
As long as this body had to affirmatively agree that an
emergency existed, then you could hold a hearing and address
many of the fine issues that my co-witnesses identify, and I
agree entirely that those are relevant factors to consider.
Mr. Cohen. Thank you.
Mr. Gerson.
Mr. Gerson. Well, I am not sure that life can't continue
very well without this Act altogether, because one starts with
the Constitution. But speaking to the Act, and you are here to
amend it, I mean, remember that its purpose was to clear the
deck of a bunch of emergencies that were a decade old and were
littering the field.
And remember, also, that your fundamental power, that
undergirds any of this is the power of the purse. And so what
you ought to be doing, it seems to me, is, by amending this
statute clearly--and everybody agrees about this--that you need
a clear, plain English definition of what constitutes an
emergency.
What you are saying is, we are giving license to the
executive to carry on, on this--on this basis without our
intervening to cut off that activity by taking action with
relationship to finance, what your Article 1 powers are. I
mean, so you need to think--you are thinking about process when
you do this.
And as I say, I start with the Constitution. And first and
foremost, I think a clear definition, some practicable time
frame should be attached to that, and the rest should be up to
considering how this actually will work in practice, how
Congress can play a meaningful role, particularly the House
which has this ability to originate revenue bills and
appropriations bills, and how that--how that will work in
practice.
That shouldn't inhibit a President, for example, with
respect to the exigencies of exercising the war powers or
foreign affairs powers, assuming that there is an emergency.
Avoid those kinds of problems. Avoid the kinds of problems that
the Tonkin Gulf Resolution created. I think with historical
reference, with a look back, with some common sense, you can
simplify this, make it clear, define what your role is, and
take a much more activist role, given the limited, but very
profound, power that the House of Representatives has.
Mr. Cohen. Thank you, each of you, and we will come back to
this, I am sure. But right now I recognize the ranking member,
Mr. Johnson, 5 minutes.
Mr. Johnson. Thank you, Mr. Chairman.
Professor Turley, can you just describe for us how the
Obama administration's use of nonappropriated funds for
healthcare insurers differs from this current situation, the
Trump administration using statutory authority here.
Mr. Turley. Well, there is a very significant difference. I
was a bit alarmed when I saw some members talking about using
the precedent we created in Burwell to challenge this
declaration as a body. And in my testimony, I strongly
discourage that.
One of the reasons I took the Burwell case is, I have been
a long believer in legislative standing. I believe a lot of the
problems that we have today is that there are some types of
constitutional violations by Presidents that can't be
challenged in court. They are sort of blind spots. And
legislative standing solves that problem. This body worked for
decades to get a court to--to recognize legislative standing,
and we prevailed on that.
I--quite frankly, I don't think this is a very promising
litigation, and I would not put that precedent at risk.
Now, the reason it is not the same situation is that what
President Obama did, was, as you described, they came to
Congress to ask for funding for the insurance agency--insurance
companies, under 1402's program. And this body, for whatever
reason, declined to do that. The administration then declared
that this would be a sort of implied permanent appropriation,
much like the appropriations that pay citizens their tax
refunds. That Congress doesn't require the IRS to come to you
every year and say this is the amount of money we want to give
citizens. You give a permanent appropriation. It is like an
open credit card. That is something this body does not like to
do, unless it really seriously looks at whether it wants that
type of year-in, year-out type of appropriation.
What the administration said is that we will pay this
directly out of the Treasury, and that is what Judge Collier
said was a no-go. She just said, look, this is
unconstitutional, Congress never said that, and this would
really destroy the power of the purse.
That is not what President Trump is doing. You can disagree
with his policy, but he is acting under a Federal statute that
gives him this authority, and he is using appropriated funds.
Now, we can--I actually think that the challenge on the
source of the funds could potentially have a positive ruling
for the challengers on some, I doubt if on all of the funds.
That is a statutory issue that we can debate. I talk a little
bit about it in my testimony.
But that is very different from what happened in Burwell.
And so what I encourage this body to consider is, regardless of
where you come out on this, there are ample lawsuits pending,
and they are being well litigated, including some by friends of
mine. Let that happen. The members can come in as amicus curiae
but protect the precedent that we were able to win in Burwell.
Mr. Johnson. Thank you for that. One more question. To what
extent does the Supreme Court consider Presidential rhetoric
when they are interpreting statutory authority? So, I mean, are
they going to consider the legal provision that governs, or are
they going to look at comments made in the press? You know, we
remember President Obama famously said, if you like your
healthcare plan, you can keep it. But could people have sued to
keep their plan even if they didn't have that right under the
ObamaCare statute itself?
Mr. Turley. I actually may create a course on Presidential
rhetoric after this administration and its use in
constitutional interpretation. I have to say that I disagreed
with the Ninth Circuit to the degree to which it utilized the
President's tweets and campaign statements in reaching its
decision on immigration. I thought the first immigration order
was dreadful. It was poorly written, poorly defended. It was--
it was really a product that was shocking.
But, ultimately, the Supreme Court agreed with the
administration on the underlying core issues, and that opinion
recognized the President's inherent authority on the border.
Usually, courts are reluctant to go outside the record to read
the motivation behind a declaration or, for example, the
motivation of this body, in legislation. They tend to try to
stick to what you say in your official documents, and they do
the same with the President.
So I understand that the President certainly stepped on his
lines when he talked about the fact that he really didn't have
to do this, but I do not believe that that is going to be
determinative, and I am not even entirely sure it is that
relevant.
Mr. Johnson. So tweets cannot alter an order or a statute?
No, that is my words, not yours.
Real quick, Ms. Alvarez, I just had a quick question. And I
don't mean this disrespectfully. It is an honest question. But
you described your property, you said, in some part of the
property, you use a wooden corral built by your great
grandfather, you have been there for a number of generations,
and there is a soft bluff that separates the river and your
property. And you said very conclusively that there has never
been, in your words, no drugs, no gangs, no terrorists have
ever come across that property. The question is, do you have
video surveillance of your whole--that whole length of your
property?
Ms. Alvarez. Not of the whole length of the property, but
towards the part where my home is and my parents' home, yes.
Mr. Johnson. Does someone monitor it like through the
night, like 24/7? I mean, the question is, how do you know, how
can you be certain that no one has ever crossed your property
illegally?
Ms. Alvarez. Well, it does capture Border Patrol people
going through my property, and it sends alerts. So therefore,
if somebody else would be passing through there, I would get an
alert. I haven't gotten any.
Mr. Johnson. Thank you. No further--I am out of time. Thank
you, I yield back.
Mr. Cohen. Thank you, Mr. Johnson.
I now recognize the chairman of the full committee, Mr.
Nadler.
Chairman Nadler. Thank you.
Professor Turley, I unfortunately agree with you that
courts are very reluctant to question the President's honesty
or--any President's honesty or motivations, and go behind his
determinations, but I think that on this one, at least as to
the use of military funds, he wants to move military funds to
have the border guarded by building a wall with military funds.
Presumably, the wall is a military asset for military use. But
the Posse Comitatus Act specifically says the military cannot
be used to enforce domestic law. So how can you justify use of
military funds for military purpose--for a military purpose
that is denied to be a military purpose by law?
Mr. Turley. Now, that is an excellent question, and it will
be an issue the court will have to deal with. I have to say
that I am skeptical----
Chairman Nadler. Because?
Mr. Turley. Because the military has been used on the
border in the past. Presidents have called the military to the
border. It is a classic use of the military.
Chairman Nadler. Have they ever been challenged in court?
Mr. Turley. Not that I recall. But I doubt a court's going
to seriously debate whether a President has the authority to
send the military to the border.
Your point, Mr. Chairman, is a perfectly good one, to the
extent that they are doing law enforcement duties, that does
bring up Posse Comitatus. That is a legitimate----
Chairman Nadler. Immigration law is law enforcement duties.
Mr. Turley. But the----
Chairman Nadler. Drug smuggling is--what would they be
doing that wouldn't be law enforcement duties?
Mr. Turley. Well, because the border is also a national
security border. It is a classic use of the military. They
patrol the border. And I am just saying how I believe a court
is going to view this.
Chairman Nadler. But the patrol the border, presumably,
against foreign troops. Insofar as they are talking about drug
smuggling or illegal immigration, that is domestic law
enforcement.
Mr. Turley. Well, I would say that border protection is a
mix. And the question is, are you--do you expect a Federal
judge to say, you can't order troops to the border to deal with
border security? The answer is--
Chairman Nadler. No, but I expect a Federal judge maybe to
say, you can't order troops to the border to deal with drug
smuggling or illegal immigration. National security, yes. If
the Mexicans are going to invade, 1848 isn't that long ago,
yeah.
Mr. Turley. Yeah. I do--I do think that this body can
correct this problem. It can create clarity on the use of
this----
Chairman Nadler. Mr. Gerson, would you comment on that?
Mr. Turley [continuing]. Because it doesn't currently exist
in the statute.
Mr. Gerson. On which part of it?
Chairman Nadler. On the use of military forces to enforce
domestic law, or is that what is happening here?
Mr. Gerson. I agree with you in the abstract, but in the--
in the real, I have to agree with you, because that is a point
that we make in our litigation, and I expect it to be accepted.
I think the--I think what--what to me is the right answer to
that, comes from the fact that, sure, the President can
dispatch troops to the border for a reason that is consistent
with Presidential war powers. There needs to be an underlying
fact. If it is just a question of interdicting immigrants, that
doesn't relate to the enumerated power that the President has.
Chairman Nadler. So the express purpose of the wall, which
is to interdict immigrants and prevent smuggling, would not be
a military purpose within the meaning of the Posse Comitatus
Act?
Mr. Gerson. Again, I am on the public record in our filing
saying that, and I happen to agree with it, but I am not free
to say anything else either. You know, as to the--as to other
issues, can this be vindicated, of course it can. I am not
burdened by--I am not commenting on anybody else's lawsuit, but
I am not burdened by the problems that congressional standing
raises.
Chairman Nadler. Okay. Let me ask--let me ask one other
question. I agree with you on congressional standing, and I am
glad of that. In fact, it gets to a different question, which
is probably a little off topic, but I will mention it here,
anyway.
The Justice Department maintains, as a matter of law, that
no President can be indicted. As a matter of law. Okay. Justice
Department maintains a lot of positions that one might contest
and think they are wrong. Normally, however, one can test it in
court. If the Justice Department thinks it can indict you for
something or other, it indicts you. You move to dismiss on the
grounds that it is--whatever the grounds are, and the court
will decide. But if the Justice Department decides it cannot
indict a President as a matter of law, then it won't do so, and
how does a court ever decide--how do you ever get the court to
decide whether the Justice Department is right or not? It seems
to me there is a catch 22 there, but I--go ahead.
Mr. Gerson. Well, I am quite familiar with that provision.
It was written with respect to the potential indictment not of
a President, but the Vice President.
Chairman Nadler. Right.
Mr. Gerson. And it--it wasn't tested. It--it served----
Chairman Nadler. My point is, it cannot be tested.
Mr. Gerson. I think you are probably right. I think that
there is a range of nonjusticiable disputes that will never be
tested. There are some that relate to war powers that will
never be tested.
Chairman Nadler. Okay. Let me ask one last question because
that is a different topic. What would you think of a statute--
and Ms. Goitein recommended some version of this--that said any
Presidential declaration of emergency automatically ends in 10
days or 30 days, if the Congress hasn't affirmatively acted to
extend it, or to ratify it?
Mr. Gerson. Well, it is impracticable.
Chairman Nadler. Why?
Mr. Gerson. I think that my fundamental look at that is
not--is not so much philosophical. I mean, how quickly can
you--can you obtain meaningful action, and what happens--put
aside dealing with issues of border security that have gone on
for years that you can--that you can debate forever and come up
with conclusions--what if we were under attack of some kind,
say a cyber attack that hit us on many fronts that was----
Chairman Nadler. Well, the President could--the President
could act, could declare an emergency, could act on the
emergency. Congress, within 10 days or 30 days, could decide to
extend it or not.
Mr. Gerson. Again, I go back to something I said earlier,
you can extend it forever. But when you--when you get to what
the fundamental congressional power is, it is the power of the
purse. And so what you are--what you are going to do is
something that relates to the power that you actually have. If
you disapprove what the President is doing, you are going to
take steps to cut off his ability to do it, or her ability to
do it.
Chairman Nadler. Well, either--either you act to--either
you automatically cut off the declaration of emergency if
Congress doesn't declare it in a certain period of time. To act
on the power of the purse, requires a two-thirds vote to
overcome the President's veto of your prohibition on his use of
money, and that is shifting the burden.
Mr. Gerson. Yeah, I don't care--I don't say that you are
not going to have a practical and constitutional difficulty if
you--if you do what you are going to do. Let me just say this:
I think with clearer definitions as to what constitutes an
emergency, you are going to be on much better grounds, not only
judicially, but politically.
Chairman Nadler. Clear definitions are certainly in order.
But without--without a time limit within which Congress has--
which was originally the intent in 1976--without restoration in
some version of that, it seems to me to say that Congress, to
stop the appropriation of money, needs a two-thirds vote, is
turning Article 1 on its head.
Mr. Gerson. Well, what happens--it is not my job to ask you
the questions, but yours to ask me. But as you war-game this in
committee, what is it that you think happens after the
expiration of 10 days or 30 days?
Chairman Nadler. Whatever authorities that the President
was granted in the--by the emergency declaration cease.
Mr. Gerson. And what if--what if the President doesn't do
what you want?
Chairman Nadler. Well, that is always a question.
Hopefully--
Mr. Gerson. Yeah, but, again, I think the time limit issue
is somewhat--is somewhat artificial, that it may be helpful to
have a time limit. You ought to consider that. But what happens
at the end of it? I think--I think you need to think that
through.
Chairman Nadler. Thank you very much.
My time is very much expired.
Mr. Cohen. Thank you, sir. And I wasn't going to call time
on the chairman, but Mr. Johnson did mention there were flights
coming. So thank you for mentioning time limits.
Mr. Armstrong of North Dakota is recognized.
Mr. Armstrong. Thank you, Mr. Chairman.
Professor Turley, and I am just going to start with, I
think this is a great conversation to have. This is an
abdicated--we have abdicated this responsibility over the
course of 30 years. And taking some power back on this side of
the aisle, and oftentimes the only time you can do it is
looking into the future instead of looking into the present,
because the President becomes highly polarized, and we all know
that very well. And if you didn't before this week in Congress,
you sure do today. So I do appreciate all that.
But my question is, not based on how Congress can act to
change the law, because I think we should. My question is,
under the current law, as it stands now, what risks do you see
by those who are filing these lawsuits against the President? I
mean, just kind of along the lines of, be careful what you wish
for, you might get it.
Mr. Turley. Well, there is a chance of bad cases making bad
law, and that is always a concern you have when you look at a
high-profile case. I don't see how these cases can prevail
under the existing law. I don't see a good-faith argument that
President Trump lacks the authority that he used, because there
is virtually no conditions on that authority.
And I also don't see how a judge is going to run the table
on every one of the sources of these funds. Some of them
seems--will likely go through. And it is more than enough for
the next 2 years to start construction.
I think the more productive use of our time is to focus on
how we can have a workable solution to the NEA, which had some
very noble purposes at the outset, and one of those is to--to
go back to the original draft and the concept of having an
affirmative act from Congress after some period of time.
Mr. Armstrong. And that is another question I just have. We
talk about legislative intent. We talk about what happened in
the--what was originally in the Act and then taken out of the
Act. But before we can ever get to that, we have to deal with
the statutory framework as it exists. So you only go to
legislative intent if there is a discrepancy in the statute.
And I would argue--I am not nearly as accomplished a lawyer as
the gentlemen sitting down there are--I mean--but--or the
witnesses sitting down there, but it is so vague in so many
different ways, and so broad-based that I don't know how you
would find a discrepancy in it, particularly in order to ever
go to those kind of questions.
Mr. Turley. No, you can. And history actually works against
the challenge, that most of the emergencies that have been
declared are largely economic and diplomatic issues. And,
frankly, they are not that significant in terms of emergencies.
Most people, frankly, in the United States had no idea that
there is dozens of national emergencies ongoing. They didn't
have any idea that we had an emergency over uncut diamonds from
Africa or Zambians who might be, you know, passing transfers of
wealth.
The problem is that this is so easy, that the
administration--past administrations have just used it to get
an edge or to deal with a problem, internationally, on a
unilateral basis. So when a judge looks at this, is she really
going to say, even though we have never ruled that a President
cannot exercise the authority in this way, even though we have
had dozens of still-ongoing emergencies, I am going to use my
judgment as to what constitutes an emergency on the border, on
the NEA, even though emergencies aren't defined.
Now, you might find a judge like that, but at the end of
the day, I don't think you are going to prevail. I mean, that
is what judges are not supposed to do. They are not supposed to
substitute their judgment for what is an emergency. And when
people say, Look, well, it is not an emergency because look how
the numbers have declined, there is less than 400,000, you
know, people being--being captured or arrested along the
border. Once again, a judge is going to say, Look, it is not my
job to say that 1.2 million is an emergency and 400,000 is a
problem.
Elections have consequences. This President ran on this
being a national-security concern. He won. And he declared this
as a national emergency.
Mr. Armstrong. And in my effort to get everybody to their
flights, I will yield the rest of my time.
Mr. Cohen. Thank you, sir.
Mr. Raskin from Maryland, Professor Raskin, you are
recognized.
Mr. Raskin. Thank you, Mr. Chairman, and thanks for all of
your great testimony.
Let me try out a theory on the witnesses here. I noticed
that most of the cases have been brought first in the name of
the Constitution, and then as a statutory matter, which I think
is the right way to do it. To me, the whole current situation
is solved by the steel-seizure case, where President Truman
came to Congress asking for authorization to be able to seize
the steel mills and Congress said no. Then the President went
out and did it anyway, and then the Supreme Court ended up
saying no, it is a red light by Congress, you can't run the
red.
And that is exactly what has happened here. The President
came to us, asking for money for the border wall. In good
faith, what have you, we had a disagreement. We didn't give it
to him. Now, he very blatantly, clearly, explicitly wants to go
around the back of Congress and say I am just going to go ahead
and use this money anyway. So we say that it violates our power
of appropriation and the power of the purse, and the steel-
seizure case is on point.
Now, if they want to plead that they have got some
statutory authority to do so, we very simply say, Well, no
President has ever been able to invoke one of these rare,
emergency provision statutes for the purpose of circumventing
the will of Congress, the express will of Congress. And I don't
see why that doesn't settle it, and I don't see why we would
lack legislative standing, without saying one way or another
what Congress would do in that situation. But can you guys just
illuminate a response to what I am thinking? Mr. Gerson?
Mr. Gerson. Well, I am not dealing with the problem of
legislative standing in the litigation that I am bringing. I
represent El Paso County and some other groups that are--not
only directly but immediately injured, and have to do things
now and so----
Mr. Raskin. And you are actually facing something like use
of eminent domain power.
Mr. Gerson. That is right. And the planning that has to do
with that. We will deal with all those issues in time.
I have been an opponent of congressional standing. I think
that it is rare that it can be supported because I do believe
in the political-question doctrine. What distinguishes this
case that--that we have, that a judge doesn't have to make his
or her own determination as to what constitutes an emergency.
This case can be decided on the--on just the grounds that you
describe. Obviously, you have read our papers and endorse
everything that we have said to the District Court, but what a
judge can, and I hope does say in this case, is that this so-
called event lacks all the characteristics of an emergency. I
can think of any number of things that----
Mr. Raskin. But are you speaking in constitutional or
statutory terms?
Mr. Gerson. Well, I am speaking in constitutional terms,
that a judge doesn't have to exceed textualism, if you will.
Mr. Raskin. But we don't have a constitutional definition
of ``emergency.''
Mr. Gerson. More importantly, you don't have a statutory
one. And so----
Mr. Raskin. Well, at least the word ``emergency'' appears
in the statute.
Mr. Gerson. Yes, but it is--but it is undefined. And there
can be----
Mr. Raskin. Yeah.
Mr. Gerson [continuing]. Emergencies, and there can be
emergencies.
Mr. Raskin. Yeah.
Mr. Gerson. But in this case, where Professor Turley and I
disagree is with respect to what the ability of a court is to
decide something that, to me, is of an objective nature, that
is within the realm of permissible activity by the judiciary.
Mr. Raskin. Yeah.
Mr. Gerson. We also can win this case on purely statutory
grounds for reasons that----
Mr. Raskin. Yeah.
Mr. Gerson [continuing]. Mr. Nadler pointed out and you
would advert to.
Mr. Raskin. Yeah. I mean, I tend to say I agree with Mr.
Turley that on the statutory grounds, it is more ambiguous
because it appears to be, you know, a delegation to the
President. Of course----
Mr. Gerson. Well----
Mr. Raskin [continuing]. If the interpretation is
completely deranged and off the wall, then maybe a court
would----
Mr. Gerson. Yeah, but there are two parts to the statutory
grounds. I mean, I think that a court can say this is not an
emergency, because it lacks all the objective criteria that any
emergency would need to have.
Mr. Raskin. Yeah.
Mr. Gerson. But in addition, with respect to the use of
funds----
Mr. Raskin. Yeah.
Mr. Gerson [continuing]. I am very confident that we are
going to prevail on that----
Mr. Raskin. But doesn't----
Mr. Gerson [continuing]. and prevail in front of
conservative judges.
Mr. Raskin. But doesn't the cannon of constitutional
avoidance help you, too, that you want to interpret the statute
in a way that is consistent with the Constitution, and here,
the Constitution completely militates for a reading which
protects Congress' power over the purse rather than giving the
President license to mangle the legislative will.
Mr. Gerson. Now we are leaving Justice Jackson concurring
in Youngstown Sheet & Tube and moving to Justice Frankfurter
and Ashwander. Yeah, certainly, constitutional avoidance can be
applied, and we can win this on a pure--on a pure statutory
ground. I think it is more likely to go back to--to Justice
Jackson. This is, to me, one of those things that he describes
in his third category of disputes, the justiciable category,
because as you pointed out, the President is directly
disobeying what the Congress has legislated.
Mr. Raskin. Okay. Mr. Turley.
Mr. Turley. Hi. I think that the staff, part of the fun
they had, for Stuart and I to share the same mic as he argues
against legislative standing. It took everything I could not to
push the button.
I strongly disagree with Stuart about his objections to
legislative standing, but we can put that aside. What I would
encourage the committee to consider is that there is no need to
use that. The concern I have is that there has been a long
suspicion that judges go to standing when they don't want to
deal with a tough question. And so if you--you use legislative
standing on this issue, you risk a judge avoiding these
difficult questions and just saying, You know what, I have come
to a different conclusion, you don't have standing. And you
don't have to take that risk because you have got people who
are ably arguing this.
But the one thing I have to disagree with--and I see this
with great respect because you are my ideal of a law professor
with Article I authority--something that----
Mr. Raskin. A minor particle of it, but, yeah.
Mr. Turley. I would disagree with you, this is not
Youngstown. In Youngstown, Hugo Black said, There is no statute
underlying the exercise of authority. There is a statute here.
You gave them a statute. And Jackson's first category----
Mr. Raskin. We are talking about the most recent
legislative pronouncement on the issue. We had a very specific
answer as to the request for money for the wall.
Mr. Turley. Yeah.
Mr. Raskin. And the President was clear about that; we were
clear about that. I mean, there is no ambiguity here.
Mr. Turley. No, but that is not the same thing. Just
because you did not grant an appropriation is not the same as
an authorization of authority which you gave to the President.
And this is the first category under Jackson. Jackson says that
if there is an underlying statute, the President----
Mr. Raskin. That has been overridden by a more recent
statement by Congress? I don't think so.
Mr. Turley. I don't think statutes are overridden by
statements of any kind. You simply decided how much money to
give the President. That doesn't speak very loudly to some
amendment of NEA.
Mr. Raskin. All right. I am going to have to yield back,
but can I just ask you one very quick question. Would you agree
that--would you agree that Congress should use its power under
the current statutory framework to say that there is no
emergency, and to override the President?
Mr. Turley. Yes. I love Congress standing up for its
authority.
Mr. Raskin. Okay. Thank you very much. I yield back.
Mr. Cohen. You are welcome, Mr. Raskin.
Next, we will recognize Mr. Goodlatte's successor, Mr.
Cline.
Mr. Cline. Thank you, Mr. Chairman.
I want to continue that line. So, Mr. Turley, in the
absence of a positive act to prohibit, are we to infer, you
know, Congress not providing the money that the President
requested, that there is a statutory prohibition, therefore, to
any action to provide money for said wall?
Mr. Turley. Yeah, it doesn't work that way. It is like
Woody Allen saying, I wish I had a positive thing to say, let
me give you two negatives. It doesn't work that way. That is,
you have a positive grant of authority under the NEA. Your
decisions under appropriations are informed by various issues,
of how much money you want to give, under what circumstances,
how are you going to tie the money in. A court is not going to
use that as a constructive amendment of the National
Emergencies Act. It is just not going to do that.
And so what you have is what Jackson described as the first
category where a President's authority is virtually
unassailable, a grant of authority by the Congress to the
President that he is using. And you can disagree with the
decision that he is making, but you gave him that authority.
You have the ability to rescind the emergency, and a court is
not going to do that for you.
Mr. Cline. I want to drill down--well, I will get to you in
a minute, Ms. Goitein--the authority that was granted by
Congress in 1976, Congress had enacted over 470 statutes by
1973, and so what we are doing, is, we are allowing under the
statute, using appropriated funds for military--in support of
military action. Didn't--wasn't the military asked by
Immigrations Customs Enforcement for assistance at the border?
Mr. Turley. Right. Part of the problem with going down on
the military construction is precisely that. Agencies are given
deference under the Chevron doctrine, but more importantly,
unlike the first immigration order, this thing is likely to be
armor-plated with agency findings. A court is hard-pressed to
substitute its own judgment for those agency decisions,
including the need for military forces. Where there is a Posse
Comitatus issue--and I think that can be a real issue--will go
to what exactly they are doing along the border.
But if you--as I say in my testimony, I drilled down on
each of the sources that the President has cited for these
funds, and there are very strong arguments under every one of
them that he can, in fact, use these funds. This has been a
longstanding problem. When President Obama launched the Libyan
war, I represented both Republican and Democratic Members
opposing that war for the absence of a declaration and absence
of an appropriation. President Obama funded that war out of
loose change.
I mean, this body gives so much money to the executive
branch, without many conditions, that he was able to fund a war
out of what was just sloshing around.
Mr. Cline. And isn't it true that it is not even--emergency
authority is not even required----
Mr. Turley. That is right.
Mr. Cline [continuing]. To move money around within
departments----
Mr. Turley. That is right.
Mr. Cline [continuing]. In various cases.
Okay. So, Ms. Goitein, I want to move beyond the debate
over what the President has done, and, quite frankly, this
hearing would have--if this hearing is designed to examine
that, it would have been better if we had had it before Tuesday
or whenever the vote was by the House.
But looking forward, I think we have a great opportunity
here to make Article I great again. And so I want to follow up
on your suggestions. Publicly available reports, can you expand
a little bit about what is missing and what we need to be
doing?
Ms. Goitein. Well, it would be great, to start out, if you
guys could find them and make them public. Because the
President is supposed to report to Congress every 6 months on
expenditures associated with states of emergency. That happened
up through, I believe it was 2003. At that point, President
Bush delegated all of the emergencies other than 9/11 and the
Cuba Naval Blockade, at that point, were issued under IEEPA,
the International Emergency Economic Powers Act. And President
Bush delegated to the Treasury Department the authority to
submit those reports.
From that point on, you can't find them in the
Congressional Record. They were no longer read into the
Congressional Record. So they are not publicly available from
2003 on.
We also haven't been able to find any of the reports on the
9/11 state of emergency. If you can find those and make them
public, that would be terrific. We have, of course, filed a
FOIA request for those. But what I would say is, going forward,
that was another omission in the statute for accountability
purposes, that the NEA did not require those reports to be made
public in some form and also was a little too minimalist in
what it asked for in those reports. The expenditures give us
some information, but not quite enough.
Mr. Cline. I do agree that we need to more clearly define
what an emergency is. I disagree with you that Congress
unintentionally left that out of the 1976 NEA. I think the
President is fully acting within his authority to define that
emergency. He has stated multiple times he believes there to be
an emergency at the border, and I concur with that, given the
humanitarian crisis that is ongoing and the lack of ability of
ICE to handle that threat and that emergency on its own.
So--but putting that definition in the Code is something I
would agree with, and would be happy to work with the chairman
toward that end. And with that I yield back. Thank you.
Mr. Cohen. Thank you, sir. Good maiden speech.
Ms. Scanlon, you are recognized.
Ms. Scanlon. Thank you very much.
I think it is great that we seem to have agreement by all
four of our witnesses today that Congress should assert its
power to declare this national emergency null and void, so it
is great we have got a starting point. I just want to look at a
little bit of the underpinnings on the differences in opinion
that folks have.
Professor Turley, you have given your opinion that the
absence of an explicit definition of ``emergency'' in the
National Emergencies Act gives the President virtually
unfettered authority to determine when we have an emergency,
right?
Mr. Turley. That is correct.
Ms. Scanlon. Okay. So you have argued that if we accept
your definition that this President, or a subsequent President
could, for example, declare gun violence to be national
emergency, right?
Mr. Turley. I don't see a basis to deny that, because there
is no definition.
Ms. Scanlon. Okay. And similarly, if we accept your
definition that there is--or your argument that there is no
definition, then a President could declare climate change to be
a national emergency?
Mr. Turley. Yes. The only--the only caveat I would note,
when the chairman referred to melting down guns, for example,
is that just because the President has the authority to declare
a national emergency, that does not suspend the United States
Constitution. So acts like that could very well violate the
Second Amendment or a President could violate other amendments.
So the national--the Congress could not pass a statute that
allows for the suspension of the Constitution unless it is a
suspension of habeas corpus.
Ms. Scanlon. Okay. And that is kind of where the rub seems
to be here, and that is the part that I am interested in. At
what point does the declaration of a national emergency start
encroaching on explicit, constitutional language or implicit,
constitutional language?
So, I mean, as I was looking at your argument that the
absence of a definition means there is unlimited authority, I
did what a lawyer does, and I started looking at dictionaries,
because in the rules of statutory construction, we look at the
purpose of a statute, or then we look at the plain language,
the plain meaning. So when I looked at Black's Law Dictionary
and Webster's and everything, I found the definitions differed
a little, but the clear commonality was words like ``sudden''
and ``unexpected'' and ``unforeseen.'' And having worked in the
immigration law sector for many years and having visited the El
Paso border with my colleague, Representative Escobar,
recently, I can tell you that the situation at the border isn't
sudden or unexpected or unforeseen.
So with that, Ms. Goitein, you have pointed out that--you
spoke in your testimony about abuse of emergency powers. Can
you speak to whether the situation at the border meets, either
the statutory intent or common definition of an emergency, and
whether it may be pushing so far into the idea of undermining
constitutionality?
Ms. Goitein. Thank you for that question. I certainly agree
with Professor Turley that the National Emergencies Act gives
the President pretty much maximal discretion. However, as I
said in my opening statement, even the broadest discretion can
be unlawfully abused, and I see that as having two dimensions
in this case.
One is that I do think that courts are entitled and
certainly Congress--are entitled to look at the plain meaning
of words. We don't have to pretend that President Trump could
define ``emergency'' as its opposite. There are some basic
parameters that must be adhered to, and that I think courts are
allowed to consider--either take judicial notice of, or look at
a dictionary.
So I don't think that the President could say that a potted
plant is an emergency. It just wouldn't work. There is not that
much discretion, necessarily.
But the second part of this is what both of you were
talking about, which is that Congress cannot give the President
discretion to violate the Constitution. The President could not
declare a national emergency because too many people of color
are voting. The President could not declare a national
emergency because newspapers are publishing editorials critical
of him.
And there is strong evidence in this case that the
President declared a national emergency because Congress
exercised the power of the purse. That is a constitutional
prerogative of Congress that he is trying to undermine with
this declaration.
Professor Turley's analysis treats Congress' repeated votes
against funding the wall as if they were legally irrelevant.
And I don't believe they are. I think they could factor in, in
a number of ways, but the one I mentioned just now is one.
Ms. Scanlon. Okay. If I can quickly move to Mr. Gerson, can
you comment on the constitutional problem created by the
President's declaration of a national emergency following the
considered bipartisan, bicameral vote by Congress to fund a
variety of border-security measures other than the wall
proposed by the President?
Mr. Gerson. Well, that is the--that is the constitutional
crux of our argument. That is the point at which it begins. We
wouldn't be able to fit into Justice Jackson's third criteria
without disobedience of a congressional edict by the executive.
So that is our starting point.
Ms. Scanlon. Okay.
Mr. Gerson. If you are implying that you agree with me, I
am happy to know that.
Ms. Scanlon. Yes, I do. Thank you very much. I yield back.
Mr. Cohen. Thank you. The Republicans have exhausted their
witnesses, and so we will recognize Ms. Garcia from Houston.
Ms. Garcia. Thank you, Mr. Chairman.
And I just wanted to make a little comment here. We keep
talking about campaigns and campaign slogans, and I think one
of our colleagues mentioned, make Article I great again. I
think the better button might be, just like we had, It is the
economy, stupid; it should probably be, It is the Constitution,
stupid. But maybe I will put some money together and get some
of those buttons done real quick.
But, you know, I am concerned about the balance of power. I
am concerned about separation of powers, because I do think
that this is a constitutional issue. And I really do thank
everyone for coming today, particularly you, Ms. Alvarez,
because, obviously, you have traveled a long distance. You come
from my home State. You are from La Rosita. I am from Palito
Blanco, which is between Alice and Kingsville. I, too, grew up
on a farm. And I don't recall--you know, although I am not next
to the border, I am close enough that I can tell you that any
time we always got concerned and we always knew when somebody
crossed over our farm because there would either be a fence
that was unlocked or some footprints. There would be some sign
that somebody had traversed our property. And I know that you
are concerned.
So tell me, again, you have not seen or know of any rapists
or murderers or drug dealers or human traffickers, or any, you
know, people trying to do harm to anyone around your property,
or any of your neighbors' properties?
Ms. Alvarez. Not at all, ma'am.
Ms. Garcia. And have you had a chance to visit with any of
the property owners adjoining you to see if they share in your
concern about what this proposed wall might be doing to your--
your farm and your livelihood?
Ms. Alvarez. Yes, ma'am. I will say, I can speak for my
community. Most of my community is made up of elders who are
not very familiar with the issue. They have been actually
threatened at one point or another to sign over documents and
stuff or else their properties will be taken away.
Mind you, we people in Starr County--and I can speak for
myself and for my area--we do not want this wall, and we do not
see a crisis, especially rapists, gang members, or an invasion.
Ms. Garcia. Right. And are you the only party in this
lawsuit, or is there a number of other parties in the lawsuit
that you mentioned? I am not familiar with it. I just----
Ms. Alvarez. There is a few other parties.
Ms. Garcia. There is a few other parties. Well, in your
opinion because you are down there, I mean, do you see a crisis
as something that is, as one of my colleagues has described, of
grave concern, a change, or something that may be endangering
to your area?
Ms. Alvarez. Not at all.
Ms. Garcia. Not at all. Well, thank you, again, for coming.
I know it is a long distance.
And, Mr. Gerson, I wanted to first tell you that I think El
Paso County is in good hands, and I wonder if you had reviewed
or had listened to the recommendations that Ms. Goitein put
forth in her opening statement and had any reaction to her
recommendations, or do you have any other recommendations that
we should consider?
Mr. Gerson. Well, I suggested earlier that I would start
with the definition. But as to Ms. Goitein's views, I have read
her testimony, I find it edifying. I mean, you have noticed
that the range of disagreement here is very small----
Ms. Garcia. Well----
Mr. Gerson [continuing]. In terms of what your legislative
purpose is going to be. So I would--I would recommend
considering all--all of those things. None of this--none of
what you ultimately have to do deals with the lawsuits or other
things that are going to be determined elsewhere, but you will
have a chance to write meaningful law.
As I say, I am someone who normally, in--in my own
political life, supports conservative judges because they read
the law, that they are textualists, that they don't--that they
don't make it up, that they are originalists in terms of
constitutional interpretation. I carry that through to this,
and much of my criticism, it has to lay at the feet of the
Congress, which has abdicated responsibilities that it has.
I know from long history of dealing with this body that
oftentimes things are left contradictory or unstated, so that
the law itself gets passed, so that somehow 11th hour agreement
is reached. That is a bad policy to follow, whether--whether
you are talking about who is covered by the Civil Rights Act,
which is constantly being litigated, or anything else. And so I
think it is fair to say that there is pretty great agreement in
this room that there has been an erosion of congressional
power, as I suggested earlier. Too often, the Congress acts
like a Parliament. That is not what it was set up to do.
Indeed, it was set up to be something else. Because there was a
Parliament that allowed a king to act in an arbitrary way, we
fought and won a revolution.
Ms. Garcia. What--what do you think about this whole notion
of time limits, whether it is a termination period or a come
back and get extended, or any of those other options that have
been mentioned?
Mr. Gerson. Well, I said to Mr. Nadler earlier on that--
that the concept--that you ought to address the question of
time limits, but recognize that it is inherently problematic,
that you have got to play it out, because time limits expire,
and what do you do when they do expire and no definitive action
has been taken? You have got to play that through when you
decide what to do, and you are not doing it just for yourself.
You are doing it for future Congresses. You are doing it for
future administrations that might be of a different party than
you are. So you have to think about the country, and you have
to think about policy, and as I say, you need to be wise.
Ms. Garcia. Okay, thank you. I think my time is up, and I
yield back.
Mr. Cohen. Thank you, ma'am. I now recognize Judge Gohmert
from Texas.
Mr. Gohmert. Thank you. Appreciate the witnesses being
here. Reading earlier, an article quoting from Washington Post
and so many of--ABC, NBC--repeatedly calling what is going on
on the border, a crisis, constantly using the word C, the
crisis word. But then again, that was when President Obama was
in office. And now that he is not in office, those same
medium--media are now saying, oh, there is no crisis.
I know there are some that have said the numbers are down
last year, but if you look at October, November, December,
January, as we had testimony from that very table earlier this
week, it used to be 80 percent adult males coming into the
country looking for jobs, from Mexico, and now it is a huge
majority of family units, or alleged family units bringing
children because they know if they bring children, they are
going to be allowed to stay here.
From the nights--and I certainly appreciate testimony from
anybody that lives there, but of all the nights I have spent
all night on the border, I have seen a crisis. And the crisis
doesn't stop when the Homeland Security takes over as some of
the Border Patrol have related to me. The drug cartels call us
their logistics. And I said like the commercial--the drug
cartels get them illegally into the country, and then they
often provide an address or a contact in the city where the
drug cartels are going to allow them to work off the rest of
the money they owe the cartels. And then Homeland Security
would ship them to those locations.
So it shouldn't have been any surprise, people in the last
week or so, there was a massive bust in one of our biggest
cities, drug cartel meth lab. When you see a rape tree, you see
multiple rape trees, signifying this is where we have raped
women, I guess it is all in whose view, but I would think that
the women felt like it was a crisis.
But I have been very concerned about the power we have
given up here in Congress, concerned about that during the Bush
administration, the Obama administration, and I thought it was
a terrible time to give up, specifically, legislating
appropriations. Some call them earmarks. Earmarks, if they are
self-serving, they are an abomination, but if it is legislature
specifically saying this is where you spend the money, it is a
good--normally, a good thing for a Congress to do. And we
haven't been doing that for a long time.
So when the National Emergency Act was passed, it did,
indeed, give up tremendous amount of power that Congress, I
don't think, should have given up. But I know you are aware--I
mean, when we talk about maybe a time limit, looks like the
Obama administration has 11 of their emergency declarations
still going on.
Professor Turley, whether I agree or disagree with you, I
always appreciate your consistency and integrity. And you made
the comment that, first and foremost, a court is unlikely to do
for Congress what Congress will not do for itself, and it
reminded me of a comment my friend Justice Scalia said when I
asked him about something, not specific because they don't give
advisory opinions. He said, Look, if you guys in Congress are
not willing to do your job, don't come running over to our
court wanting us to do it for you.
And I think that you put it more succinctly, but that would
seem to be--I mean whether--even though we have given up all
this power, Professor Turley, it looks like the courts have
been pretty consistent in saying, Yeah, you gave it up, but it
is your job, not ours. Do you know of any cases of courts of
appeal, other than, maybe, a Ninth Circuit that have said
otherwise?
Mr. Turley. No. In fact, in the--in the testimony I talk
about a couple of cases that strongly militate in the opposite
direction. One was actually a decision, I believe, by Justice
Breyer, when he was on the Court of Appeals, called Deacon,
where he looked at this issue of the loss, expressly stating
that the Congress has to get together every 6 months. And an
emergency was challenged by someone that said, look, you
haven't gotten together and satisfied that part of the statute,
so this emergency must be invalid.
Now, just look at that for a second. This, in comparison
with the rest of the Act, that provision is the model of
clarity. It says, 6 months, you must get together and make a
decision, or deliberate on this emergency. Even that, the court
said, is not going to be binding under the statute. So what you
are going to ask a court to do is to go deeply into a policy
judgment of what constitutes an emergency, and you are going to
have to do that after the Supreme Court just ruled in favor of
the administration on its immigration orders, and said that
there was not a likelihood of prevailing in that case, because
the President has such tremendous deference at the border. I
don't consider that a winning hand. I don't consider that a
hand of any kind, to go to court with.
Mr. Gohmert. Thank you.
And, Mr. Chairman, I would just submit, I would be glad to
work with anybody on your side to try to limit the National
Emergency Act, but I do think it is our job. Thank you, I yield
back.
Mr. Cohen. Thank you, Judge. I think we--I appreciate your
coming to the hearing, and the previous time we have been here,
we have seen a lot of unanimity that this needs to be something
that could happen, and so maybe we will have a bipartisan
result to this.
Ms. Escobar is next, and we appreciate your--your
constituent and your lawyer.
Ms. Escobar. I do, too. Thank you, Mr. Chairman, and many
thanks to our panel.
Mr. Gerson, thank you, especially, for representing the
great County of El Paso.
For context, let me tell all of you about my community. I
am from El Paso, Texas, the beautiful, vibrant, new Ellis
Island, which is on the U.S./Mexico border. With absolutely
sincerity, I invite all of you, every member of this Judiciary
Committee, to come visit. Please allow me the opportunity to
give you a tour of our border.
I am a proud fronteriza, a woman of the border. My family
has lived there for over 100 years, so I can speak with some
authority on this issue. I can assure you, we have never been
safer or more secure. While we have a wall in El Paso, we were
safe long before it was ever constructed. And the question is,
why have we been so safe? Well, there is three factors that I
can point to quickly--community policing by local law
enforcement, a significant Federal law-enforcement presence,
and most importantly, I believe, the fact that immigrant
communities are among the safest in the Nation.
Our immigrant community is made up of one-quarter
immigrants, and we have multigenerational roots in the region.
El Paso is not unique in this way. Most of our southern border
communities are just like this. And Mr. Johnson, we do face a
challenge. I agree with you on that, you are right. And you are
right when you say that we should be introspective about these
issues in order to find real solutions.
So the drug issue, which is one of the issues cited for the
wall, is not a new issue. We know it is not a new issue. Our
country has long had an insatiable appetite for illegal drugs.
The other reason cited--and this seems to be the one most
discussed by my colleagues--is the thousands of central
American asylum seekers arriving every day at our doorstep.
This, too, is not new. We first saw this phenomenon in 2014.
Central American unaccompanied minors and families have been
running from crushing poverty, violence, and persecution for
nearly 5 years now.
What happens is that they come in what is called a surge.
This is the fourth surge in 5 years. Mr. Gohmert just mentioned
that the 2014 surge was called a crisis by members of the
media. Yes, it was the members of the media, not by those of us
on the U.S./Mexico border. In fact, I just had Jacqueline print
out a piece that I wrote and published for The New York Times
about this very surge in 2014, called, Why the Border Crisis is
a Myth. This was published on July 25th, 2014.
Mr. Chairman, I ask unanimous consent to enter this into
the record.
Mr. Cohen. Without objection, it will be done.
[The information follows:]
MS. ESCOBAR FOR THE OFFICIAL RECORD
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Escobar. The question we should be asking, is, why
hasn't the Department of Homeland Security, which has received
massive Federal investment, been strategic or nimble enough to
deal with each successive surge? Especially when we are in year
number five.
I am not afraid of these families arriving at my doorstep.
I live in El Paso. What I am afraid of is the willingness I
have seen by some to ignore the responsibility we have as a
coequal branch of government. I am afraid of the amount of
money that this nonemergency will be stealing from military
families, who were promised badly needed day cares and schools.
In my district, I am afraid this nonemergency will steal,
or could steal, up to $275 million from Ft. Bliss, one of this
country's most important assets, money that is being taken from
our troops to fund a political prop. This obsession with a
wall, which will be funded at the expense of our military, is
heartbreaking to me.
The day before yesterday, one of my colleagues on the House
floor said that we are a Nation at war. We are not at war. Yet,
in my community, barricades with concertina wire are being put
up at our ports of entry. Starting this week, the return-to-
Mexico policy will be implemented. We are turning away asylum
seekers at our ports. We are driving them to places that are
more treacherous and dangerous. That is the crisis, and that is
a man-made crisis. That one is easily solvable.
If we truly want to get to the bottom of this surge, then
we need to do the hard work necessary to work with the Northern
Triangle to address the challenges, some of which we have
created.
I shared that with you, Mr. Johnson. We have had a hand in
driving people out of their homes from Central America. We have
an obligation to solve this in a compassionate, humanitarian
way, but, again, this is not new, this is not an emergency.
I know my time is up. And if I had just a couple of more
seconds, I would ask our landowner, Ms. Alvarez, everything
that you have had to endure as an American property owner at
the hands of this government. You have obviously had to hire
lawyers. You have had to fly to Washington, D.C. to defend your
property. I am very curious about what this government is
putting you through.
Ms. Alvarez. This government has created a loss of family
members, a loss of friendships, a division amongst us in our
communities, because, you know, people agree and disagree, mind
you, over an issue that I strongly disbelieve in. There is no
crisis. These people, like you said, are in the ports of entry,
trying to create--come in, with every lawful right, because
they do have a right to claim political asylum. But somewhere,
someone has created hate towards these people. We are at a
record low of entries right now, even though the numbers are so
high, because the media has put it out there. Yet, why do we as
a community have to pay for someone who wants to put up a
barrier, a wall or so, that is not going to work, and that has
been proven not to work? I am here--I have been going through a
lot, but I am here and I am here to fight this.
And I agree with a lot of things. Things need to change. We
need to change immigration reform. We need to change parts of
what the Constitution is there, so we do not create loopholes
where people take advantage of them and we are in this
situation that we are in.
Ms. Escobar. Thank you.
Mr. Cohen. Thank you, Ms. Escobar.
Ms. Dean, you are recognized, and thank you for deferring.
Ms. Dean. Thank you. Thank you, Mr. Chair. Thank you for
the opportunity that you are giving our committee to examine
and address the gross overreach by the executive branch. The
President has already identified $8.1 billion in
congressionally appropriated funds that he plans to take in
order to build his ineffective wall which he promised Mexico
would pay for.
In my home State of Pennsylvania alone, we have identified
more than $165 million in military projects that could be on
the chopping block and at risk. It is an irony that the
protection of our Homeland Security, which the President
professes to, he is actually going to harm. He is harming our
military.
I also want to reiterate the findings of 58 former national
security officials who condemned the President's emergency
declaration, and stated that any redirection of funds will,
quote, ``undermine U.S. national security and foreign policy
interests.''
Mr. Chairman, if it is all right with you, under unanimous
consent, I would offer this report into the record.
Mr. Cohen. Without objection, so done.
[The information follows:]
MS. DEAN FOR THE OFFICIAL RECORD
=======================================================================
_______________________________________________________________________
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Dean. It is signed by such people from both sides of
the aisle with decades of leadership experience in bipartisan,
different administrations such, as Madeleine Albright, James
Clapper, Samantha Powers, Leon Panetta, Susan Rice, just to
name a few. And here are just a few of their important
findings. And it will be entered into the record.
Illegal border crossings are at nearly 40-year lows. There
is no documented terrorist or national-security emergency at
the southern border. There is no emergency related to violent
crime at the southern border. There is no human or drug-
trafficking emergency that can be addressed by a wall at the
southern border.
And I won't go on, but you know the other, very substantive
findings. But I will end on a final one. There is no basis for
circumventing the appropriations process with a declaration of
national emergency on the southern border.
So I would like to ask the question--and, Mr. Gerson, I
will pivot to you if I can--specifically, the President cited
10 U.S.C. 2808 in his proclamation which, quote, ``requires the
use of armed forces,'' end quote, and allows for the taking of
funds that, quote, ``have been appropriated for military
construction.''
Can you please explain why these two requirements in 2808
do not apply to this proclamation, and also, if you could
speculate, and importantly, substantively speculate on the
impact that these takings will have on readiness and morale?
Mr. Gerson. Well, I am an erstwhile Pennsylvanian, and
military veteran, so perhaps I have some useful knowledge
there, but that is not why I am here. But I will address it if
you would like. The issue that we face, that you just
described, is something I talked about earlier, and you are, in
essence, paraphrasing something that I and Professor Tribe and
the lawyers at Willkie Farr who have helped us, have said in
our briefs. It is one of the reasons why, as I said to Mr.
Raskin earlier, if there is a constitutional-avoidance issue
here, that we can win on statutory grounds.
Funds that are--that are appropriated for a specific
purpose, pursuant to law as to what they are, should not be
held to be flexible, but, again, the point is, that this whole
thing can be defeated irrespective of any discussion of that,
because there ain't no emergency. You know, this is the reverse
of things. You know, if it doesn't look like a duck, if it
doesn't walk like a duck, if it doesn't quack, it might be a
hippopotamus, but it isn't a duck.
And it is your job to define this law. I mean, I am very
appreciative of the remarks that are made by the people who
live on the border. My son's godfather's name is Susano Ortiz.
He described himself as a wetback, who made good under the name
of George Ortiz as he moved from Texas to California. I am
conscious of these--of these issues.
But as I said, I would be here making the argument that I
made even if I agreed fully with the President as to the--as to
the need for the wall. There is nothing illegal about your
appropriating money to do that. The problem here arises because
you specifically declined to give him what he asked for. It is
no implication. You didn't do it.
And as I say, I think, as I said at the outset, that I am
making a fundamentally conservative point. Plenty of
conservatives agree with me. As you know from my descriptions
in the documents here, that I am affiliated with people well on
the--to the right of center and way to the right of you, and
that is okay. What you have heard here and the thing that I
hope to take away from this, and I hope that all of you take
away from this, is the high level of agreement as to how you
ought to be exercising the autonomy that some good
conservatives like James Madison have bequeathed to you.
Ms. Dean. Mr. Chairman, if you would allow me, I know my
time has expired, but just a couple of seconds to compliment
Mr. Gerson, a fellow Pennsylvanian. I used to teach writing at
La Salle University in Philadelphia for 10 years. So I so
appreciate your plain English when you say, ``There ain't no
emergency.'' Thank you, Mr. Gerson.
Mr. Cohen. Thank you. We have, and with unanimous consent,
will enter into the record the following materials: A cover
letter and three articles by Professor Ilia Soman; a statement
by the Constitution Project at the project on government
oversight opposing Trump's declaration of a national emergency;
a letter from former GOP lawmakers also opposing the emergency
declaration; an article by Elizabeth Goitein, I think, and the
Atlantic, which was the article that spurred my interest in
this and kind of set the ball rolling; and an article by David
French in the National Review. Without objection, so entered.
[The information follows:]
MR. COHEN FOR THE OFFICIAL RECORD
=======================================================================
_______________________________________________________________________
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. I want to thank the members of the panel, our
witnesses. Y'all were a great panel. I think in all my--this is
my 13th year in Congress--I haven't had a better panel that
discussed the issues and probably brought the two sides
together. I think we hopefully will have some legislation as a
result of this hearing, and so I think it was very productive
and very worthwhile.
Ms. Alvarez, you are most appreciated for coming here. Very
few people have been amongst such legal talent, and you have
been a star here as a citizen telling us about the situation on
the border, and I thank you for that. So I thank our witnesses.
Without objection, all members have five legislative days
to submit additional written questions for the witnesses and
additional materials for the record. And I also want to thank
C-SPAN, because this was better than Michael Cohen.
This hearing is adjourned.
[Whereupon, at 2:22 p.m., the subcommittee was adjourned.]
[all]