tv Brennan Center Symposium on Presidential Emergency Powers - What the... CSPAN February 4, 2019 4:35pm-5:29pm EST
senate. his first was against the late massachusetts senator, ted kennedy, in 1994. and utah also has a new member of the house. democrat ben mcadams now represents the state's fourth district. the former mayor of salt lake county is the only democrat in utah's congressional delegation. new congress, new leaders. watch it all on c-span of the. president trump says he might use the president's emergency powers to reassign money to pay for a southern border wall. the brennan center for justice hosted a discussion on whether the president can legally do that, and how other presidents have used emergency authority. this is about 50 minutes.
if you all could sort of settle down with your lunches and we will get started. so we spent the morning talking mostly about the emergency powers that congress has given to the president, but there is also the question of what eemergency powers if any the constitution provides. and our speaker has done a great deal of thinking and research into that very question. it's my pleasure to introduce the james monroe distinguished professor of law at the university of virginia law school. i was fascinated to come across his work on emergency powers. he is -- studies closely issues of separation of powers and the reach of executive power. he's the author of the book "imperial: from the beginning, the constitution of the real executive." and i think you'll be very interested in what he has to
say. professor prakash? [ applause ] >> well, thank you so much, eliza. thanks to the brennan center and thanks for inviting me to this wonderful and timely conference. of course, it's become more relevant in the past month or so. as liza mentioned, i -- a lot of my scholarship focuses on the founding and the contours of the original presidency. and you know, in light of recent events, you know, i look back to faran's records and eliot's debates and i learned that the president does, indeed, have a power to create a wall, but only if it's on the southern border, and only if mexico pays for it. [ laughter ] so i want to say it's very rare that a professor finds someone who's actually read an article of theirs. so when liza sent me an e-mail, describing my article, i got the sense that she had at least read the syllabus, but maybe the entire thing. and i was very excited by that.
my talk will fok cus on the mounding. i have a couple of things to say about what's going on today. but nothing very specific about what's going on today. i think that the claim -- trump's claim with respect to the wall is -- to my understanding, is a statutory question. i very much doubt that the president or his lawyers are going to say he has constitutional power to build a wall. so i'm going to focus on the original scheme, which i think had three parts to it and then i'm going to focus on our modern scheme, which also has three parts. and then i'll suggest some reforms to the modern scheme, as some suggestion, tweaks and modifications of the many statutes that liza talks about in her atlantic article. so what about the original executive and what about emergency powers? well, you can certainly read article ii as granting the president broad authority and emergencies. the president has given the executive power. you can read that as a grant of substantiative authority that goes beyond the rest of the
specific enumerated powers in article ii. i certainly believe that, that the vesting clause references more than just what follows article ii. that's why the president has residual authority over foreign affairs. that's why the president has authority over law execution. at least that's my claim and i've made that in other articles and in other form. but i want to suggest that despite the vesting clause and despite the commander-in-chief clause, the president under the original system had no emergency powers. by virtue of those two clauses. they didn't give him the power to expand habeas corpus, they didn't give him the power to rule by martial law. they didn't give him the authority to act contrary to statute. how do we know this? we know this in part because of the predecessors to the presidency. english crown and the british crown, the state executives and the continental
congress and its control over the continental army's commander-in-chief, george washington. so if we look at great britain, did the english crown have some emergency power to suspend habeas corpus, and the answer is no. every suspension in england or great britain came from parliament. came from parliament, not the crown. the crown never purported to suspend the act of habeas corpus. what about martial law? well, it turns out that the crown had some authority to impose military justice on members of the army, but no authority to impose military justice on civilians. and the authority to impose military justice on the army only existed in england when there was a war on english soil. that is to say without war on english soil, the english crown could not discipline soldiers
for their, you know, leaving without authority or committing other military offenses. the only way that -- you know, the only way that the crown could impose articles of war on the military is if there was a war going on in england. the reason why they were able to impose articles of war in times of peace is precisely because parliament authorized them to do so. that is to say, when the articles of war applied in england in peacetime, they did so because parliament authorized the crown to impose them. and i'll mention one final episode from 1776. in 1776, apparently, there were torrential rains in england and lots of flooding. the grain crop was devastated. by law, parliament had allowed english farmers to sell their grains overseas. they wanted to do so, notwithstanding the fact that there were not enough grain to feed people within england. riots developed in england, because of the lack of grains within england.
the crown said, we're going to suspend this statute that expressly authorizes farmers to export grain to france and the rest of the continent. and so they expressly suspended it. and there was a question, is the suspension of the statute legal or is it illegal? and as many of you may know, the english bill of rights in 1689 specifically said, the crown can't suspend laws. and so there was this question, well, what about suspending laws in an emergency, as opposed to a non-emergency situation? well, parliament was brought into the discussion because there was some suggestion that parliament ought to indemnify the officers who enforced the crown's embargo of wheats and grains and corn from england. and parliament passed the statute. and the statute said, the crown did not have authority to suspend the export of grains from england. it was illegal. and then they indemnified the officers, because they perhaps thought it was a good idea.
but basic point of that episode is even though there was an emergency, there were riots in england, having to do with the export of grains and the high price of grains. and even though the crown reacted in what you might think is a sensible fashion by preserving those grains for english consumption, the parliament said, you can't do this. you can't suspend our laws, even in an emergency, you can't suspend our laws. and the founders would have noun of this, because the american edition of blackstone mentioned this episode and how parliament had essentially rebuked the crown by saying, you can't do this. so i think there's some indication in british practice that the crown could not act contrary to standing law and there were various restraints on the crown's ability to impose martial law. and of course, there was an absolute bar on the crown suspending the privilege of the writ of habeas corpus. if we turn to the revolutionary war, we see a similar pattern, except the executive was even
more -- was even weaker, still. so if we look at the state governors, the state executives, they all had executive power or executive authority. but they could not seize property during the war. they could not suspend habeas corpus during the war and they could not authorize the military trial of civilians during the war. all of those things, when they occurred, occurred under legislative sanction. that is to say the state legislatures passed statutes saying, you can seize property. the state legislatures passed statutes saying we're suspending habeas corpus. state governors complained about the situation. they sometimes they said, our state constitutions aren't suited to war, which is, of course, ironic, because all of these constitutions were created in the midst of war, right? they were all created in the middle of the war. and they also complained that they were in a state of imbecility as a result, and they used imbecility in a different
sense than we use it today, they used it in a sense of being feeble. they didn't have enough authority to wage war successfully, they thought. they would say, i had authority to seize property last week, that statute expired and now i'm in a state of imbecility. so i can't help you, george washington. i can't seize this military property. i have to wait until the pennsylvania legislature passes a new statute. it's a familiar complaint, right? whatever crisis authority congress would give the president, there's always the temptation on the part of the executive to say, i need even greater crisis authority. what you've given me isn't enough. it's hemmed in by restrictions, too many restrictions, and i need more. and that's essentially what the state governors were saying. but it's important for our purposes, because it suggests the state governors knew that by virtue of the state constitutions alone, they did not have authority to seize property, suspend the privilege of the writ, order military trials, et cetera.
and that's notwithstanding, again, the grants of executive power and the fact that many governors were commanders in chief. what about the national government? well, as i told you, as you know, george washington was the first -- was the only commander in chief of the continental army, appointed in 1775 by congress. he had -- he operated under the same disabilities. he could not seize property without a congressional statute. he could not suspend the privilege of the writ of habeas corpus, he could not authorize the trial of civilians before military courts. he could not act contrary to standing law. and we know all of this, because from time to time, congress passed statutes that authorized him to do some of these things and not others. and typically, these statutes were passed and supposed to last for six months or nine months or until congress reconvened. sometimes, they were geographically constrained. you can only take these measures
within 20 miles of the military camp or 30 miles of the military camp, but the point was, congress delegated authority to do these -- to take these various emergency acts and the commander in chief honored these statutes, right? if someone was caught outside the 30-mile limit of the emergency statute, they couldn't be subject to military justice and they couldn't be detained. if the statute authorizing suspension of the privilege of the writ had expired, you couldn't indefinitely detain someone. and there are letters from washington saying, you can't -- in telling his military commanders, you can't do these things, because the statute that we formerly used has expired. congress put a time limit on these statutes and the emergency authority no longer exists. and so, i think, you know, when you think about a commander in chief, you think, you don't just think of the constitution, you have to think of the commander in chief that predated the constitution and that's george washington. and his actions and congress'
actions vis-a-vis the office give us some sense of the scope of the authority. a commander in chief was the first general of the army. the first admiral of the navy. he or she does not have authority to do whatever he or she feels necessary to win the war. and we know this because, again, congress gave this authority, these significant crisis authorities piecemeal to washington, only for limited periods of time. so that's the backdrop to the creation of the constitution, right? we have an english practice where the crown doesn't have the power to act contrary to law, a power to suspend habeas corpus, a power to impose martial law, military justice on the civilian population. you see the same disabilities with respect to state governors and state executive councils, and then you finally see the same sorts of disabilities with respect to the national commander in chief, aka, george washington. and when i look at the constitution, i don't see anything that indicates a decision to deviate from that scheme.
you have, again, a grant of executive power. you have someone made commander in chief ex-afficio, so congress no longer appoints the commander in chief. there's nothing in the constitution signifying the power meant something broader in 1777 or 1788 than it meant in 1775, '76, et cetera in the states. so there's just no reason to think that they were using this phrase and imbuing it with greater authority to suspend habeas corpus to impose military justice, to spend money without an appropriation. to seize private property. and the same is thing is true with the commander in chief clause. we just had a commander in chief during the revolutionary war. it was a known office with known limits and known authorities. it didn't extend to these types of crisis authorities. so there's no reason to think that the commander in chief created by the constitution was meant to create a different office.
that the president would be imbued with all sorts of emergency authority. does that mean the president is utterly bereft of emergency authority? no, he, of course, has some. it's in article ii.authority? no. it is in article ii. the emergency authority, you know, doesn't seem like it's emergency authority, but it would have been understood at such, though, first, the president can make recess appointments when the senate's not in session. that's something that you can use in an emergency. if you've got a general that's just been killed while the senate's in recess, you don't have to wait, you can just appoint someone during the recess of the senate to serve as general until the end of the next session of the senate. it's not a power that's only usable during a crisis, but is certainly a power that is useful in crisis. a second power is the pardon power. we don't tend to think of this, but the founders thought the pardon power would be very useful to pacify rebellions. they thought you might be able to promise a pardon to rebels and they might lay down their arms, which it happened many
times in english and british history. and of course, hamilton says as much in the federalist papers. that's one of his reasons for -- that's one of his defenses of the pardon powers, to say, the president needs to have this authority, because he needs to be able to credibly convey a promise of a pardon to rebels. if you have to go to congress to get a pardon or some other body, you can't credibly convey that you're going to give them a pardon. and the third emergency authority is the power to summon congress on extraordinary occasions. right, the word "extraordinary" implies some sort of crisis or emergency situation. and i think the idea behind that clause is, if there's a crisis, the president should summon congress and congress should be able to deliberate as to what ought to be done in that crisis and possibly pass new legislation to deal with that crisis. and so in a sense, that clause confirms the intuition that the president doesn't have much emergency authority. he is calling back congress in
order to get congress to deal with the emergency, ex-post, right? the emergency has occurred, the president calls back congress, they then sit and decide whether to raise the army, raise the size of the army to have a navy, how big a navy, to suspend habeas corpus, perhaps call forth the militia, buy new weapons, you know, build ships, et cetera. so when you look at the constitution, i don't see any fundamental change from the system that predated it, a system where the executive is relatively impotent. what i called in the article imbecilic in the sense of being feeble. and i think that post-ratification practices bear this out. of course, the country had various crisis throughout its history, in the first hundred years, during washington's administration, i can discuss three separate crisis and i'll bring them to your attention and tell you washington's response
to them. first was the whiskey rebellion. the which is committee rebellion was america's first tax revolt. folks in pennsylvania who are brewing whiskey didn't want to pay the excise tax and they tarred and feathered federal collectors. and basically threatened to set up some sort of independence from the federal government and certainly independence from collection of the whiskey excise tax. and so this was, you know, a rebellion, arguably in the sense of the constitution. fortunately, congress passed a militia act of 1792 that specified when and how the president could call forth a militia to suppress the rebellion. washington conformed to that act when he called the militia to suppress the rebellion. he followed it to the letter. he didn't claim, i just have general authority to deal with this crisis. we have a rebellion and i'm going to do whatever i think is necessary to pacify it. i take a note to the constitution to defend it and support it, et cetera. he followed the statute to the letter.
he needed a certification from james wolson or from a justice of the supreme court that the regular means of enforcement were insufficient to enforce the laws of the united states. he waited for that judgment and james wilson, an associate justice of the u.s., from pennsylvania, made that determination. and that's when washington called forth the militia for states, marched them into pennsylvania and subdued the rebellion. so the very first rebellion that washington faced conformed to law. a second crisis was invasions by indian tribes in southern states. again, a significant crisis, certainly if you were in the south. washington, again, complied with statutes enacted by congress. "a," and "b," he did not claim that the president could do whatever he wanted to do to deal with this crisis. he specifically told governors, it's for congress to decide whether to wage war, it's not my decision. and the final crisis also took place in pennsylvania and it's the yellow fever crisis. i don't know much about yellow
fever. i don't even know why it's called yellow feefr, but thousands of people died in pennsylvania due to this fever. and congress was set to meet in philadelphia and the president had this query for his cabinet members and for james madison, who wasn't in miss cabinet, for jonathan trumpel, who was the speaker of the house, under the constitution win can summon congress on extraordinary occasions. can i summon them elsewhere? can i summon them to a different city than philadelphia? maybe far removed from the fever? and so he got back all of these opinions from his cabinet members and he got back the opinions from madison and from trumbull. a couple of them said, the power to -- the power to summon them is the power to someone them somewhere else. so this provision in the constitution allows you to summon them somewhere else. others said, no, you can't do this. the power you have is to summon them early, not to summon them somewhere else.
no one said you have the executive power, you are commander in chief, and there's an emergency and you can take whatever measures you want to avoid this crisis. the crisis is that members of congress show up in philadelphia and they all -- half of them get yellow fever and die. that's the potential crisis. but the response is destructive. no one just says, hey, you've got an emergency, you can do whatever you think is necessary to deal with this crisis. and i have to suggest after washington, that understanding continues. so let me give you a particular example. andrew jackson, the hero of new orleans, declares martial law on new orleans. he -- you know, apparently arrests people who criticize him. he arrests a judge that hears a habeas petition, filed on behalf of the person he arrested. he then arrests the person filing a habeas petition for the judge who he just arrested and arrests both the judge who entertained the second habeas petition and the petitioner.
he really believes in martial law, right? he really believes in martial law. and he is called to account by james madison, the father of the constitution, and his defense of his measures is, necessity. i had to do this. i had to declare martial law. and madison's response conveyed by the secretary of state, alexander dallas is, you may have been justified by necessary city, but the constitution doesn't justify what you did. no one but congress can do what you did. no one but congress can declare martial law. so what you did was illegal. and jackson responds back by saying, well, maybe, you know, it was illegal, but it was necessary, right? and i think that suggests that madison, at least, understood that the president did not have power to suspend, to impose martial law, and in this case, suspend the writ of habeas corpus, which was the effect of the declaration of martial law. and even jackson, i think, grudgingly admitted that he
could not declare martial law or suspend the writ of habeas corpus. and you see other incidences where territorial governors, not military commanders, declare martial law in the 1850s. and they receive letters from the attorney general or the secretary of state or the president saying, you can't do this. you can't have authority to do this you can't declare martial law. you can't suspend the privilege of the writ, which is in keeping, i think, with the original scheme. i think things change in the civil war. i think things change in the civil war, and of course, things have been different ever since. as you may recall, abraham lincoln took a number of unilateral measures at the beginning of the war. he increases the size of the army. he suspends the privilege of the writ of habeas corpus unilaterally. and then he summons congress, but he's clever.
he summons congress after he does all of these things. so that he presents them with the a fait accompli. and his message is really interesting and worth reading. he initially says, i didn't do anything that you couldn't do, congress. which to me is a clever way of saying, maybe i did something wrong, but, you know, it's okay. it was necessary and maybe you'll approve of it now. and that's consistent with the old scheme. what's different, he then goes on to talk about habeas corpus and says, can it be the case that congress has a monopoly on the suspension of the privilege when, in fact, it's possible that an invader or rebels will take over washington or take over congress and prevent them from ever meeting? if congress has a monopoly, there may be -- it may be impossible to suspend the privilege of the writ. therefore, congress can't have a monopoly. i have to have some authority, as well. so i do have authority, as well. i have authority to suspend the
privilege of the writ, because any other answer would just be silly or nonsensical. again, because if congress has a monopoly, what happens if the invaders take over congress or congress can't meet and we need to suspend the privilege? we just simply can't. it's a very clever argument and it's an argument that has won its admirers today, but of course it's an argument that suggests there can be no constraints on the executive, right? because the very argument he made equally applies to the army and the size of the army. it equally applies to appropriations. if congress can't meet to increase the size of the army, then any increase by the executive would be illegal if congress had the monopoly on the size of the army or on appropriations. so the logic of his position i think suggests that he should be able to do whatever he thinks is necessary when congress is not around. he didn't quite say that, but that's the logic of the position. and i think a lot of people have read it that way ever since, right? that my friend, mike paulison,
has an article called the constitution of necessity in the notre dame law review, where he just says, the president takes a note to protect, defend the constitution. he can't protect it and defend it if the nation, you know, that the constitution is meant to govern no longer exists, because of invaders or rebels. so the president should just be able to do whatever he thinks is necessary to preserve the nation and therefore preserve the constitution. and that's a very seductive argument. it's one used by presidents ever since. but i think it's just wrong. it's a misreading of the constitution. it doesn't follow that because the constitution and the nation are to be preserved, that the president has authority to do so. it might, instead, follow that congress has authority. and that takes me to my second point. the original system is that the legislature has all of these
authorities. i've already talked about how in england, the parliament could suspend the privilege of the writ and authorize seizures of property. that's what occurred during the revolutionary war. i've reverted to that. every time a governor wanted to seize private property, he cited a statute passed by the legislature. every time a governor tried people in military courts and they did that, they cited the statute passed by the legislature. every time a governor or executive council held people indefinitely, they cited a suspension of the privilege of the writ and biased state legislature. so all of these emergency measures were needed or they were perceived to be needed, but they were all passed by the state legislatures. and the same thing is through for the congress. again, i reverted to the fact that the congress did authorize of private property. the continental congress did authorize the trial of civilians in military courts. the continental congress and the state legislatures were, in fact, described as having created dictators.
people said at the time that you made washington a dictator, because you gave him the authority to increase the size of the army. suspend money, fire people, impose military justice. basically gave him legislative authority over the lives and liberties of people. numerous people said washington is a dictator. back then, dictators, when people thought of dictators, they thought of roman dictators and they were the kind of people who assumed authority by virtue of a legislative decree and then gave back the authority when the crisis was over. so why was washington called sinsanatus, because there was a dictator that took authority and then retired to his farm afterwards. so the idea of a dictator wasn't necessarily a bad thing. it was only tyrannical dictators that were a bad thing. these governors and the commander in chief did not abuse
the authority, but my point here is that, in these situations, it's the continental congress and the state legislatures that are conveying authority. and i want to say the same thing is true under our system. it's not that the constitution is a suicide pact. it's not that the constitution doesn't permit coke or the federal government to defend itself, it's that the authority rests with congress and not the president. congress has the authority to call forth a militia, it says as much in the constitution. congress that has the authority to suspend privilege of the writ, not the president. it doesn't say that in the constitution, but everybody up to lincoln thought that, attorneys general, treatise writers, james kent. everybody who wrote about this issue said the president can't suspend the purpose of the writ. lincoln didn't know that or didn't care. he was a more practical person, i suppose. and then the continental congress or our congress can also declare martial law if that's needed. i know that the supreme court
rejected that view in milligan, but i think the dissenters in milligan were wrong. so i described two schools of the view. the first leg of the stool is the president is weak and meager and imbecilic. the second leg of the stool is that the congress has vast authority to deal with crisis. the third leg of the stool is occasional, congress doesn't give you authority and you have to take responsibility for acting illegally if you think it's necessary. jefferson talked about this possibility, various other founders talked about this possibility. the idea is if you think something is necessary, act illegally, go to congress, confess, and ask them to absolve you, ask them to indemnify you. and the idea behind that regime is sometimes congress is not in session when you have to take the act. again, congress, doesn't always authorize things in advance. and in that situation, you may have to act illegally and ask for indemnification after the fact, knowing full well they might not indemnify you, that they might not approve of your
action. that's a three-legend stool. executives are weak. legislatures are strong. sometimes executives have to take it upon their own responsibility to act illegally, confess illegality and hope that congress approves of their actions after the fact. i think we have a different three-legged stool today. i think the three-legged stool today, i would say -- how much time do i have left? it's q&a time now? you're saying it's q&a time now? isn't that what you're saying? well, let's -- i'll just say very quickly, i'm sorry, i didn't pay any attention to his signs, i'm sorry. i was supposed to, but i didn't. very quickly, the three-legged school today is the ft. claimed some sort of vast, but unspecified authority to deal with emergencies. and this sort of coheres with some people's common sense notions about how someone has to be able to act in an emergency. the second leg of the school is that congress has delegated vast authority by statues and we're, of course, dealing with the aftermath of that during
this administration, with tes a we're, of course, dealing with the aftermath of that during this administration, with respect to the wall. and the third leg is that the presidents never say they're sorry. they never admit they're acting illegally. they always say they have legal authority from the constitution or statutes. we've lost the idea that the president ought to, on occasion, act illegally, in order to further the public good and then take responsibility for it. instead, presidents say, i have constitutional, or i have statutory authority. i will leave it there, because it's -- i need to let you ask questions. [ applause ] >> hi, there, i'm going to invoke emergency powers to waive the sort of time limit on your pre-q&a thing. and the way i'm going to do it very cleverly is by asking you a question and my question is,
what sorts of changes and reforms do you think might be necessary in this situation, because i know you meant to get to that before the q&a? >> well, you know, liza, you know more about the statutes than i do, but in my notes, i had three suggested reforms. i think one would be to say, rather than putting the onus on congress to pass new legislation to overcome whatever emergency action the president has taken pursuant to statutory authority, i would say that the emergency authority that congress gives the president lapses 30, 60, 90 days after congress meets. and then, you know, the president can take an emergency action and congress can really decide, is there an emergency or not? you don't have a situation, which we have now, which is, you know, it's impossible to overturn a presidential emergency, because the president of any party can predict they'll get 30 or 40% in one or two of the chambers and they're not going to get overturned, as a result. so i think time limiting these
emergency decisions makes a lot of sense. that's what the continental congress did. it's been done before. the second reform comes from congress. the president couldn't call out the militia unless a justice of the supreme court of the united states said that the laws couldn't be executed by the ordinary means of law enforcement. suggests to me that people thought that, you know, you could hinge emergency authority on the factual finding from a neutral person in the article iii courts. and i don't know why you can't similarly use that scheme today to require that the president go to the supreme court or some judge. now, it runs the risk of politicizing the courts, right? and that's something to be weighed. the third possibility is, you know, i think that congress can harness the action and say, you know, if someone misuses statutory authority, there's a bounty to be collected against
the officer misusing the authority. and an informer can go into court and get 30% of it. we have that for the false claims act against military contractors and there's no reason to my mind why you couldn't have it for government officers, as well. and that would give government officers greater pause in thinking about whether to invoke this authority. because as it stands now, we have a very hard time holding executive officers to account after they leave office, right? so, i mean, this -- using funds for things you're not supposed to use them for isn't an artifact of this administration. the bush administration and the obama administration bailed out gm and chrysler with a bill or a law that was targeted towards financial institutions. and there's no way that i think that you can call gm or chrysler a financial institution, unless you're willing to call every business a financial institution. and of course, there was a
controversy about the obama administration subsidizing insurance companies when the republican congress refused to provide those subsidies. so we're not -- this isn't the first administration to potentially do this. and it won't be the last. and i think the system that we have now isn't working. you can prosecute someone criminally for an anti-deficiency act violation, but i don't when it last occurred. if people like you and i have a financial incentive to sue the administration, we will sue an administration if we think they've done something wrong. but i've taken too long with your fine question, liza, so thank you. >> anyone else? >> thanks for your presentation. i hope this isn't too specific. you caught my attention with one point in particular that i hadn't heard before. you mentioned, when lincoln called congress back into session, that you suggested it was done strategically. that he could have done so sooner? >> yeah, they didn't come back
for two months. so i think -- i think he just did -- he wanted to do a lot of stuff before they came back and then say, i did all of this stuff. what are you going to do? and of course, they passed a bill that ratified all of his acts, but i don't think it took two months for people to come back. >> i had always assumed there was a safety problem with getting there. >> i think the people from the south weren't going to come in. i think you're right that maryland and parts were troubled, but you can call them back earlier, all you need a quorum. the idea that some people can't come back doesn't mean that you can't actually have congress. i don't have a letter from lincoln and spielberg's film doesn't say, i called them back late because i wanted to do a bunch of stuff. but that's what i suspect was going on. i don't know why there would be such a delay after the outbreak of a civil war, right? to say come back july 4th. but maybe there is a more -- i mean, i love lincoln and i think
he's a great guy, but you know, i don't think he's above suspicions. and as i said, i think he acted illegally with respect to habeas corpus. >> any questions on that side of the room? because we have another mike over there, if someone wants to ask. >> hey, i'm wondering whether or not any of congress' broad powers could be non-delagable and whether that's a challenge of granting some of these emergency powers that have been granted by statute to the president. >> yeah, i mean, in the article that, you know, this second article i haven't mentioned, which is the sweeping domestic war powers of congress, i argue that if there's ever a case for designating authority, it's in the emergency contacts. that is to say, as opposed to situations where congress says, we just aren't smart enough to come up with rules for the epa or we aren't smart enough to come up with rules for the fcc, you might think that it's far more necessary and proper to
delegate legislative authority to the executive in times of crisis, precisely because a crisis involves situations that can't exactly be perhaps planned for in advance. certainly, if you look at, you know, what transpired prior to the constitution, the continental congress was delegating authority to the commander in chief and the state legislatures were delegating authority to the state governors and state executive councils. so even though i'm actually somewhat suspicious of delegations to the executive as a general matter, if there's a case to be made, it's going to have to be -- the strongest case i would say is in the crisis contacts. but if you want to -- it's possible someone could just say, no, you could never delegate legislative power and then you have to decide, what is a delegational or legislative power. >> or as a follow-on, maybe the time limitation that you were
discussing 30, 60, 90 days is sort of like a kind of quasi-nondelegation principle. ie, you can delegate, but not forever. so there's like a natural kind of -- i know it's sort of a stretch, but just to read that sort of that limit, that 90-day limit or whatever, the time limit you want in as a constitutional principle. >> well, maybe. i mean, first of all, you would say 90 days after congress first meets, because if congress never meets, then you may want the emergency authority to continue, but the problem with saying that it's not a delegation of legislative power because it's 90 days is, well, what if congress just said, you know, you can do whatever you want for 90 days during times of peace? you might say, well, it's a delegation of legislative power for 90 days. and it doesn't become not a delegation because it's time limited.
so i support a limit, as you can tell, but i don't know if it solves the problem. there is this problem, right, if you believe there's a non-delegation principle, what is the thing that you're not supposed to delegate or how much are you not supposed to delegate. and i guess, all that i'm suggesting is i think there's a case to not apply that principle in times of war. that doesn't exist in time of peace. >> i'm interested -- excuse me, have you looked at how the failure of the checks and balances to be working between the executive, legislative, and judicial branches has caused the rise to power of trump and how that continuing, just refusal to provide the checks and balances as provided for under the constitution and the law is going to continue to make the situation degrade and eventually erupt into extreme violence and perhaps another revolution? >> well, i think, you know, the
system we have on paper looks exactly the same as the founders, but there's a bunch of new developments that the founders didn't anticipate. the rise of political parties, the rise of the idea that the president is the steward of the people, was not there at the founding, it's sort of a jacksonian concept. so presidents think that they have the right to run on an agenda. their own legislative agenda. they have co-partisans in congress who think that their fortunes rise and fall with them. so they have -- the institution that was supposed to check them is riddled with people who want to agree with them and don't see their job as checking them. and that's just true for democrats and republicans, right? democrats will give a pass to president obama and republicans will give a pass to president trump.
so i don't -- you know, i think there are solutions, but i don't think -- this isn't a problem that just started. this is a problem that's been around for, you know, decades, i think. and as presidents have, you know, seen what their successors have done, i think they've become more emboldened to play more fast and loose with the law and to take steps that would have been, you know, perceived as improper in prior generations. it's hard -- you know, there are ways to, quote, solve it, but you need people willing to impose those solutions. and you know, you can't wish away the people in congress and say, you know, let -- you can say, we can imagine a whole new congress that doesn't care what the president thinks and just cares about the constitution or a good public policy, but, you know, we can imagine, you know, you know, a land of plenty where, you know, scarcity is not a problem and everybody is
happy. you know, it just doesn't solve our problem. so i don't have a precise solution to the situation. there are things that congress can do of the sort that i mentioned, but i'm not sanguine -- it may well be that you need some sort of super crisis like watergate for congress to -- the staff of congress? [ inaudible question ] >> well, i mean, look, if it's career staff, i suspect that the career staff doesn't agree with much of what the president's doing. if it's the political staff, it's the same thing i mentioned in congress. the political staff owes their job to the president. so their going to view things in his light, and that's true for, you know, all administrations, right? they're going to give the president every benefit of the doubt. maybe less so for this president, i'm not sure. but they're still going to give the institution the benefit of the doubt. so i mean, i think that's more understandable -- you might have thought that would have been true even at the founding, right, that the secretary of war, the secretary of treasury
was going to be predisposed to the president in favor of executive power. what's changed is that the congress is no longer as interested in defending its constitutional prerogatives. the judiciary is arguably more interested in checking the president. i think there's, you know, there have been people writing that the judiciary is a -- you know, parts of the judiciary are parts of the resistance movement. and i think that's true across administrations. the judges during the obama administration that arguably may have gone too far. >> i think we have time -- excuse me, ma'am. i think we have time for one more question, or do you want to -- there was one more -- yes, i see you. >> i totally respect your understanding of our congress, congressional powers. can you point out anything that the house of representatives can do on its own in the next two years, apart from the senate's cooperation that we don't know about?
>> i mean, it's hard to say. you probably know a lot. i mean, i -- i have views that are idiosyncratic. i think the house and senate should be able to get any document they want from the practice. that's not been the practice, certainly not in the last administration or any modern administration. they all claim an executive privilege or various other privileges that shield documents and shield communications. but that's a power that each house has to investigate the executive branch. it's part of the house's legislative function, but it's also part of its function as a ground inquest for the nation, right? you can't -- it's harder to conduct impeachments if you can't get information from the president. so i think, you know, the congress will -- the house and the senate will put out all sorts of requests for demands for documents and the executive will stall as long as they can. and that's just been a feature of the past. so i'm not telling you anything you don't know. of course, you know the house can impeach, right?
the house can use the failure to produce documents and say that's an impeachable offense. i think that's right. i think it is. but, you know, the house could decide not to fund the executive branch, right, if it wanted to? but the president would veto the bill that funds congress, right? if you really want to get down and dirty, both branches can really hamper the other, right? and, you know, there was a british lord who said, the separation of powers depends upon the forbearance of both not to do stupid things. and that's generally worked, but this shutdown is not the first that we've had. we've had many shutdowns. this is apparently the longest shutdown. i'm not sure i'm answering your question, so you seem like you're totally dissatisfied, which i see from my students and my kids, so it's totally fine. >> no, just, wait -- i'm really just trying to get at the fact that congress is supposed to act in unison, you know, and therefore, because we have one branch that will likely not want to act in a way that might put
the president at more -- more scrutiny on the president or, you know, more pressure, is there anything that the house of representatives can do other than what you're just suggesting, which is this investigative awareness of what's going on that we haven't had much of in the last two years? >> well, look, they'll call hearings, they'll call for documents, and i think the problem with what the house does is that the house is always perceived as a partisan institution. republicans will look at what nancy pelosi does and say she's just trying to get the president. democrats will look at what paul ryan is doing and saying he's just trying to get the president. and' lot of what goes on, the resolutions are resolved or these movements are seen through a partisan lens. maybe one thing they can do which they haven't done is pass a resolution that's not tied to a particular president and say, we expect that you hand over documents. that you have a constitutional duty to do so and that's something that's potentially republicans could sign on to, as well.
and when democrats sign it, they realize that they're also signing it in cases of democratic president. but you don't see those kinds of generic resolves. you see, you know, let's hold eric holder in contempt, right? and that personalizes it and it makes people only think of that dispute and where are they going to be on that question, as opposed to, does congress have the right to these fast and furious documents? does congress have a right to the mueller report, right? does -- do they have the right to documents that will be useful to legislate and to, you know, decide whether to impeach someone? again, i say yes. but if you always focus on a particular context and word your resolution in a particular way, it will seem partisan. so maybe that's the goal, so maybe state it in a broader way so people aren't focused on the particular fight. >> unfortunately, i have to end this discussion to make sure you all have some time to take a little break. we are going to try to start promptly at 1:30 with the next panel, but i want to thank professor prakash for that fascinating talk and really thank you so much for being here.
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postponed because of the government shutdown, will now take place on tuesday night. watch as president trump delivers his state of the union address live from the house chamber, beginning at 9:00 p.m. eastern on c-span, followed by the democratic response by former georgia gubernatorial candidate stacy abrams. the state of the union, live tuesday at 9:00 eastern on c-span, c-span.org or listen with the free c-span radio app. later this week, the house ways and means committee will discuss legislative proposals related to presidential and vice presidential tax returns. live coverage begins thursday afternoon at 2:00 eastern here on c-span3, online at cspan.org, and listen with the free c-span radio app and coming up on friday, acting attorney general matthew whitaker will testify on the special counsel investigation into russian interference in the 2016
election. live coverage starts at 9:30 eastern on c-span2. this week on "the communicato communicators" a technology update with assistant attorney general macon del raheem, rhode island democratic representative jim langevin and corey thomas, ceo of rapid seven. >> recently, you heard sprint and t-mobile merging or at&t/time warner, disney and fox, so those are merges that go through us and we determine whether or not they violate the anti-trust laws by reducing competition in certain markets. >> the thing that worries me the most how do we protect critical infrastructure, that's where most of the damage could be done, you think the damage could be done to our electric grid or hospital systems, our banking system, so there are major
things that are in place to protect us, but the vast, the tax surface is so broad that we need to continue to strengthen the public/private partnership going forward to make sure that we are better protected. >> we need to deploy technology that deploys lots of increased capability and lots of functionality but we got less resilient. now a single issue can actually cause widespread disruption, and that's what we're grappling with, as new sectors of the economy adopt technology. >> join us tonight at 8:00 p.m. eastern on c-span2. acting attorney general matthew whitaker now on religious freedom in the u.s. he spoke at a heritage foundation event on the religious freedom restoration act which became law 25 years ago. his remarks were followed by a panel discussion featuring jewish, muslim and christian perspectives on protecting religious freedom. this is just over an hour.