tv House Judiciary Hearing on 1976 Natl Emergencies Act CSPAN March 1, 2019 4:35am-6:41am EST
legislative will. >> certainly the constitutional avoidance can be applied on a statutory ground. i think it is more likely to go back to justice jackson. this is to me one of those things that he describes in his third category of disputes because as you pointed out, the president is directly disobeying what the congress has legislat legislated. >> she argued against the legislative standing and it took everything i could not push the button. i strongly disagree about the
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 it's been a long suspicion that judges go to standing when they don't want to deal with a tough question so if you use legislative standing on this issue you risk a judge avoiding this question saying i've come to a different conclusion and you don't have to take that risk because you have people that are ably arguing that the one point have to disagree with you and i say this with great respect because you are my ideal with low t debate article one of the authority that something that i would disagree with you this is not youngstown. hugo black said there is no statute underlying the statute of the authority.
in jackson's first category. >> we had a very specific answer as to the request for money for the wall. there is no ambiguity. >> 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 if there is an underlying statute i don't think they are overwritten by any kind you simply decide how much money to give the president that doesn't speak to an amendment. >> would you agree congress should use its power under the current framework to say that there is no emergency and to override the president? >> i love congress standing up for its authority.
>> next we will recognize the successor mr. klein. >> thank you mr. chairman. i want to continue that line. so, in the absence of a positive fact to prohibit, are we to infer not providing the money the president requested that there is a statutory prohibition, therefore action to provide money. >> it doesn't work that way. it's like saying i have a positive with the give you two negatives. it doesn't work that way. you have to grant of authority and your decisions under the appropriation are informed by how much money you want to give and under what circumstances. the court is not going to use that as a constructive amendment of the national emergency. it's just not going to do that
and so what you have is what was described as the first category, where a president's authority is virtually unavailable. the grant of authority by the congress to the president that he is using and you can disagree with the decision but he's making a. you gave him the authority and you have the ability to reason and the emergency into the court is not going to do that for you. >> i want to drill down the authority that was granted by congress in 1976, congress had enacted over 470 statutes by 1973, so what we are doing is allowing under the statute using appropriated funds for the military in support of the military action. wasn't the military asked by the immigrations customs enforcement at the border?
>> part of the problem is exactly that they are given deference under the chevron doctrine. but more importantly, unlike the first immigration orders, this is likely to be armor plated with agency findings. they are hard-pressed to substitute its own judgment for those including the need for the military forces. where there is a proxy cot dot u-- issue is exactly what they are doing along the border. but as i say in my testimony, i drill down on each of the sources the president cited for these funds and there are strong arguments under every one of them tha but he can in fact use these funds. this has been a long-standing problem. when president obama launched the war i represent both democratithedemocratic and repun members opposing the war for the absence of a declaration and absence of an appropriation.
president obama funded that out of loose change. this gives so much money to the executive branch without many conditions but he was able to fund the war out of what was just sloshing around. >> and it isn't even required. it is within the department depd the various cases. okay, so i want to move beyond debate of what the president has done and quite frankly this hearing it is designed to examine that, it would have been better if we 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 one great again. [laughter] so i want to follow-up on your suggestion. publicly available reports. can you expand a little bit
about what's missing and what we need to be doing? >> it would be great to start out a few code find them and make them public because the president is supposed to report to congress every six month is on expenditures associated with states of emergency. that happened up through i believe it was 2003. at that point president bush delegated the emergencies other than 9/11 and thank you for naval blockade by the economic powers act and president bush delegated to the treasury the authority to submit those reports. from that point on you can't find them in the record. they were no longer read in the record so they are not publicly available from 2003 and on. we also haven't been able to find any reports on the 9/11 state of emergency. so if you can find those and make them public that would be
terrific. what i would say is going forward that was another mission in the statute for accountability purposes that they did not require those parts to be made public in some form and also was minimalist in what it asked for in the reports. the expenditures give some information but not enough. >> we do need to define more clearly what an emergency is. i disagree with you that congress unintentionally left that out of the 1976 and ea. i think the president is fully acting in his authority to define that emergency. he stated multiple times he believes there to be an emergency of the border and i concur given th giving the human crisis that's ongoing and the lack of the ability to handle the threats and that emergency on its own. but, putting that definition in
the code is something i would agree with and would be happy to work with the chairman and with that, i will yield back. >> thank you, sir. >> thank you very much. i think it is great that we seem to have agreement by all four of the witnesses today that congress should assert its power to declare this national emergency null and void. it's great we have a starting point i just want to look at a little bit of the underpinnings of the difference of opinions folks have. you've given your opinion that the absence of an explicit definition of emergency into the national emergency act gives the president virtually unfettered authority to determine when we have an emergency. so, you've argued that if we accept your definition that this president or subsequent presidents could declare gun violence to be a national
emergency. >> i don't see a basis to deny that there is no definition. >> and similarly if we accept your argument that there is no definition president could declare climate change to be a national emergency. >> yes, the only caveat i would note when the chairman referred to melting down gun for example, is that just because the president has the authority to declare a national emergency that doesn't suspend the united states constitution, so act like that could violate the second amendment refers and could violate other amendments. the congress could pass a statute that allows for the suspension of the constitution unlesconstitutionunless it's a f habeas corpus. >> that's kind of where it seems to be and that is where i am interested is at what point does the national emergency start encroaching on an explicit constitutional language or
implicit constitutional language. so as i was looking at your argument that the absence of definition means that there is unlimited authority, i did what a lawyer does and i started looking at dictionaries because in the world of statutory constructor we look at the purpose of the statute, where then we would have the plain language, the plain meaning. so. when i looked at the dictionary and webster's and everything i found definition to diver defina little, but the clear commonality with 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 view the situation of the borde bordr isn't sudden or unexpected or unforeseen. so, with that, you've pointed out that you spoke in your
testimony about abusive emergency powers. can you speak to whether the situation of the border meets either the statutory intent or the common definition of an emergency and whether it may be pushing so far into the ideas underwriting the constitutionality? >> thank you for the question. i certainly agree that the national emergencies act gives the president pretty much maximal discussion. however as i said in my opening statement even the broadest discussion can be unlawfully abused and i see that as having two dimensions in this case. one is that i do think the courts are entitled to look at the plain meaning of words. they don't have to pretend president of trump ca can define them or see them as an opposite. there are some basic parameters that must be adhered to and i think the courts are allowed to consider that or look at a dictionary, so i don't think the
president could say that a putting plant isn't an emergency. it just wouldn't work. there's not that much discussion necessary, but the second part of this is what both of you were talking about witches congress cannot give the president discussion to violate the constitution. the president could declare a national emergency because too many people of color are voting. the president could declare a national emergency because newspapers are publishing editorials critical of income and various strong evidence in this case the president declared a national emergency because congress exercised the power of the purse. that's a constitutional prerogative of congress that he is trying to undermine with this declaration. and, professor turley's analysis treats congress is repeated votes against funding the wall as if they were legally irrelevant and i don't think they are. i think they could factor in a number of ways, but the one i mentioned just now is one.
>> okay, can you comment on the constitutional problem created by the president's declaration of the 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? >> that's the constitutional crux of the argument and point at which it begins. we wouldn't be able to fit into justice jackson's third criteria without disobedience of a congressional leading by the executive, so that is our starting point. if you are implying that you agree with me, i am happy to know that. >> thank you very much. i yield back. >> republicans have exhausted their witnesses and soweto recognized ms. garcia from
houston. >> i just want to make a comment here we keep talking about campaigns and campaign slogans. i think it would be better if it's the constitution. i am concerned about the balance of power and separation of powers because i do thin think s is a constitutional issue and i really do thank everyone for coming today. particularly you ms. alvarez because you have traveled a long distance and you come from my home state. i also grew up on a farm and i don't recall although i am not next to the border, i am close
enough i can tell you any time we got concerned and we knew when somebody crossed over our farm because there would be a fence unlocked or footprints. there would be a sign. so tell me again, you haven't seen or know of any people trying to do harm to any of your properties or any of your neighbors properties and have you had a chance to visi the chh any of the property owners joining you to see if they share your concern about the this proposed wall might be giving to your farm and your livelihood? >> i would say i can speak for my community. most of my community is made up
elders who are not very familiar with the issue that have been actually threatened at one point or another to sign over documents or their properties will be taken away. mind you in starr county and i can speak for myself and my area we do not want this and we do not see a crisis especially racists, gang members or invasions. >> are you the only party in the lawsuit or are there a number of other parties you mentioned? i'm not familiar with it. >> there's a few other parties. >> in your opinion because you are down there, do you see a crisis of something as one of my colleagues described as great concern in a change or something that may be endangering to your
area? >> not at all. i know it is a long distance. i want to first tell you i think el paso county is in good hands, and i wonder if you had reviewed or listened to the recommendations that were put forth in the opening statement and had any action to the recommendations or do you have any other recommendations we should consider? >> i suggested earlier i would start with the definition. you notice the range of disagreement here is very small. and in terms of what legislative purposes going to be i would recommend considering all of those things. none of what you ultimately have to do deals with lawsuits or
other things that are going to be determined elsewhere, but you will have a chance to write meaningful wall. i'm someone who normally in my own political life supports conservative judges because they read the law. they don't make it up in terms of constitutional interpretation i carry that through and much of my criticism has advocated responsibilities. i know from a long history of dealing with this body that often times things are left contradictory said that somehow the 11th hour agreement is reached. that is a bad policy to follow whether you are talking about who's covered by the civil rights act which is constantly being litigated, or anything
else. so i think it is fair to say that there is a great agreement in this room and that there has been an erosion of congressional power as i suggested earlier to often but congress acts like a parliament. that is and what was up to do. it was set up to be something else because there was a parliament that allowed the king to act in an arbitrary way. >> what do you think about the notion of time limits, whether it is a termination. co. or come back and get extended or any of the other options that have been mentioned? >> i said to mr. nadler early on he want to address the question of time limits but recognize that it's inherently problematic you've got to play out is the time limits expire and what do you do when they expire and note definitive action has been taken you've got to play that through when you decide what to do and you are not just doing it for
yourselyour self that future cos and future administrations that might be of a different party than you are so you have to think about the country and think about policy and you need to be wise. >> thank you i ain't my time is up. i yield back. >> thank you and we appreciate the witnesses being here. an earlier article quoting from the "washington post" and so many other, abc, nbc repeatedly calling what's going on at the border a crisis, constantly using the word crisis that is when president obama was in office and now that he's not, those same media are saying there is no crisis. i know there are some that have said the birds were down last year if you've got october
november december an, december y as the testimony from that table earlier this week it used to be 80% of adult males comin adult e country looking for jobs from mexico, and now it's a huge majority they are family units bringing children because they know if they bring children they will be allowed to stay here. i appreciate testimony from anybody that lives there but from all the nights i spent along the border, i have seen a crisis and it doesn't stop when homeland security takes over as some of the border patrol boat cartels haul us our logistics.
they get in illegally into the country and then often provide an address or contact in the city where the drug cartels are going to allow them to work off the rest of the money they owe them and homeland security would ship them to those locations so it shouldn't be surprised there was a massive dust in one of our biggest cities, drug cartel meth lab. when you see a great trees signifying this is where we've raped women, i guess it is all in whose view but i would think that the women felt like it was a crisis. i've been very concerned about the power we've given up in
congress to. i thought it was a terrible time to give up specifically legislating appropriations. some call them the earmarks if they are self-serving they are an abomination, but if it is a legislature specifically saying this is where you spend the money, normally it is a good thing for the congress to do but we haven't been doing that for a long time, so when the national emergency act was passed it did indeed give us a tremendous amount of power congress i don't think should have given up are t looks like the obama administration has either been a very emergency declarations
still going on. whether i agree or disagree i always consistency and integrity. you have to comment that first and foremost court is unlikely to do a 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 as specific because they don't give advisory opinions. they said a few in congress are not going to do your job don't come running over to our court wanting us to do it for you and i think you put it more succinctly. even though we've given up all this power, professor it looks like you've given up its your job not ours. do you know of any cases where
courts of appeal other than the ninth circuit could have said otherwise? >> i think in the testimony i talk about a couple of cases that the strongly going the opposite direction. one was a decision i believe by justice breyer when he was on the court of appeals where he looked at this issue of the law stating that congress has to get together every six months and an emergency was challenged by someone that said this emergency must be invalid. look at that for a second. that provision as is a model of clarity that says six months you must get together and make a decision or deliberate on this emergency. even then the court said it's not going to be binding other of the statute.
appreciate your constituents and your lawyer. >> thank you mister chairman and many thanks to our panel especially for representing the great county of el paso so for context i will tell you about my community program from el paso texas the vibrant new ellis island with absolute sincerity i invite all of you every member of the judiciary committee to come visit. please allow me the opportunity to give you a tour. i am a woman of the border, my family has lived there for over 100 years so i can speak with some authority on this issue and i can assure you we have never been safer or more secure but 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?
three factors are community policing, a significant law federal law presents and most importantly the fact immigrant communities are among the safest in the nation our immigrant community is made up of one quarter immigrants with multi generational roots from el paso with most of the southern border communities are just like this and we do face a challenge i agree with you and you are right when you say we should be introspective about these issues to find real solutions our country has the insatiable appetite for illegal drugs. the other reason that most discussed by my colleagues is
the thousands of central american asylum-seekers arriving every day at our doorstep this also is not news. we first saw this phenomenon in 2014 central america unaccompanied americas and families have been running from crushing poverty violence and persecution for nearly five years now. what happens is they come in a surge. this is the fourth surgeon five years. mister gomer just mentioned that the 2014 surge was called a crisis by members of the media. yes it was but not by those of us on the us-mexico border. in fact, there was just a piece that i wrote and published to "the new york times" about this very surge in 2014 called why the border
crisis is a myth published july 25, 2013 mister chairman ask unanimous consent to enter this for the record. >> without objection for the question we should be asking is why hasn't the department of homeland security which receives massive federal investment to be strategic enough to deal with each surge? i am not afraid of these families arriving at my doorste doorstep. i live in el paso i am afraid of the willingness i have seen by some to ignore the responsibilities we have of a coequal branch of government i am afraid of the amount of money the american people stealing from american families that were promised badly needed day cares and schools in my district i am afraid this nonemergency could
steal up to $275 million while this country's most important assets and the money is taking from our troops for a political prop. this obsession with a wall funded at the expense of our military is heartbreaking to me. the day before yesterday one of the colleagues on the floor said we are a nation at war we are not at war. but yet in my community the concertina wire is put up at ports of entry starting this week the return to mexico policy will be implemented. we are turning away asylum-seekers in our ports driving them to places that our more treacherous and dangerous that is the crisis. that is a man-made crisis that is easily solvable free truly want to get to the bottom of the surge 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 share that with you mister johnson we have had a hand to drive people out of their homes from central americ america. we have an obligation to solve this in a compassionate and humanitarian way that this is not new it is not an emergency but i know my time is up and if i had a couple more seconds i would ask our landowner everything as an american property owner at the hands of this government you have had to hire lawyers and fly to washington d.c. to defend your property i'm curious about what this government is putting you through. >> this government has created
a loss of family members, loss of friendships because people agree and disagree over an issue that i strongly disbelieve in. there is no crisis they are in the ports of entry because they do have a right but somewhere someone has created hate toward these people. we here add a record low right now even though the numbers
are so high because the media put it out there. yet why do we as a community have to pay for someone who wants to put up a barrier or a wall that will not work and has been proven not to work? i am here i have been going through a lot but i am here to fight it. and i agree that things need to change. we need to change immigration reform. we need to change parts of the constitution so there are no loopholes for people to take advantage and we are in the situation that we are in. .
>>. >> thank you mister chair for the opportunity you give the community to examine the gross overreach of the executive branch the president has already identified eight.$1 million of appropriated funds he plans to take to build this wall, he promised mexico would pay for. in my home state of pennsylvania alone we have identified more than $165 million of military projects that could be at risk it is the irony that the protection of homeland security will actually be harming our military. i also want to reiterate the findings of 58 former national security officials condemned
the president's declaration and stated any redirection of funds will undermine us national security and foreign policy interests. mister chairman under unanimous consent i would put this into the record. >> without objection. >> for both people from both sides of the aisle and the bipartisan administration such as madeleine albright leon panetta just to name a few and a few of their important findings. and that will be entered into the record. illegal border crossings nearly 40 years old there is no documented terrorist or national security emergency at the southern border. there is no emergency with violent crime at the southern border.
there is no human or drug trafficking emergency that can be addressed at the southern border and i won't go on but they are very substantive findings but i will end on a final one and for circumventing the declaration of national emergency on the southern border so i would like to ask a question specifically the president cited the proclamation that requires the use of armed forces and the taking of funds that have been appropriated for military construction. can you explain why these two requirements do not apply and also speculate the impact
these takings could have on morale military veterans i do have some useful knowledge but that's not why i'm here but i will address it if you like. the issue that we face that you just described is something i talked about earlier in essence you are paraphrasing and those who have said and our briefs is one of the reasons i said earlier if there is a constitutional avoidance issue with those funds that are appropriated for a specific purpose pursuant to law as to what they are should not be held to be flexible. but the point is it can be
defeated irrespective of any discussion because there ain't no emergency. this is the re- force if it doesn't look like a duck or walk or quack it could be a hippopotamus but it is not a duck. it is your job swam appreciative of those remarks of people living on the border my grandfather described himself as a wet back and made good making the name of george ortiz i am conscious of these issues but i am here making the argument even if i agreed fully with the president as to the need for the wall there is nothing illegal for you appropriating money the problem arises because you
specifically declined to give him what he asked for. there is no implication. he did not do it. i said at the outset i am making a fundamental conservative point plenty of conservatives agree with me from my descriptions in the documents i am affiliated with people well to the right-of-center and way to the right of you. and that's okay but what you all take away is the higher level of agreement as to how you should be exercising the autonomy like james madison. >> if you would allow me a couple of seconds to complement mister gersten i use to teach writing in
philadelphia for ten years so i so appreciate your plain english when you say there is no emergency. thank you. >> you have unanimous consent entering into the record the following materials the statement and a letter from former g.o.p. lawmakers in article five the article that spurred my interest in this to set the ball rolling without objection. thank you to the members of the panel and the witnesses you are wonderful panel i haven't had a better panel to discuss the issues and
probably brought the two sides together hopefully we will pass legislation as a result of this hearing it was very productive and worthwhile. ms. alvarez thank you for coming here you have been a star here telling us about the situation on the border. thank you for that they think the witnesses you have five legislative days to submit additional questions for the record also thank you to c-span because this is better than michael coleman one - - comey. [laughter] we are adjourned one - - comey. [laughter] we are adjourned one - - comey. [laughter] we are adjourned one - - comey. [laughter] we are adjourned