tv House Judiciary Hearing on 1976 Natl Emergencies Act CSPAN February 28, 2019 12:21pm-2:31pm EST
was based on a series of surveys where people asked how they are with countries that i assembled and it was the survey with 123 countries and then i looked at the political power structures in all of these countries and the ethnic and racial power structure and then related the two together to show that more inclusionary coalition or government are those who are citizens that are much more proud of their country. >> many on the judiciary constitution of civil rights and civil liberties and the democrats are in the majority and the democrats are named once again forever shall be will come to order. without objection the chair authorizes the subcommittee, 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 of the 116th congress. i look working with mike johnson on the many challenging and pressing issues that we will be addressing in the months to come. it is fitting that our first hearing will focus on the national emergencies act of 1976 and its implications for one of the core tenets of the constitution's design. a property for a project
that congress has not authorized him to build. when harry truman tried to take over the steel industries during the korean war, during a war he could not do it. illegal use of that power. congress as a co-equal branch cannot be silent. i was pleased with the house vote 245-182 on tuesday to pass a joint resolution to terminate the so-called emergency and i hope my colleagues in the senate put constitutional principles above party loyalty and presidential [ inaudible ] when they take a vote on the measure in the coming weeks. while i believe president trump's emergency declaration is legally and substantively without merit it raises a number of broader questions about the national emergency's act and emergency authority. that's why it's important even though we had this street have this hearing to see what is this act and does it need to be
amended. the national emergency act enacted in 1976 to constrain the use of presidential emergency authorities. it does not give the president any particular powers but sets forth the process 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 because the nea law setting out procedural framework only does not define what an emergency is, then the president is free to invent one whenever he wishes. allah king george. if we accept that view not even common sense or english dictionary or the constitution which we swear to uphold can act as a constraint. to the laws that give the president emergency authorities a lot of scholars and commentators pointed out we have almost lost track of how many authorities we have granted to the president or whether these grants of emergency authorities remain warranted. you're on. we'll describe some of those
laws for us. many of which have never been used. nonetheless they remain on the books and just as robert jackson put it on a different emergency claim, they, quote, lie about like a loaded weapon. unquote. telling me after president trump began talking in late 2018 about declaring a national emergency a lot of lawyers and scholars spent weeks spinning their wheels the bubbldget director t the press how they combed through the code looking for loopholes to allow them to move money around. the american people deserve better, they deserve to know the president president cannot rewrite the law to raid funds allocated by congress for different purposes. and particularly when the 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 and then shut down the government after congress wouldn't give him his funds and then after three weeks
congress vote together in a bipartisan fashion to give him what funds they thought were appropriate and he declared a national emergency. he basically declared congress null and void. i look forward to hearing from our witnesses who bring a range of perspective about issues and hope we have a fruitful discussion not only about president trump's actions but what we need to do to constrain these authorities and amend the law used only in true emergencies and not a run around our constitution. i recognize the distinguished ranking member mr. johnson from the go tigers state for his opening statement. >> thank you, mr. chairman. i appreciate you and all of our colleagues and look forward to working with you on the subcommittee this year and thank you to our witnesses for being here with us. today's hearing on the national emergency act of 1976 takes place at a time in history in which congress has increasingly abdicated its legislative powers over many decades. it's like having a hearing on puddles right now in the middle of a hurricane. that's myla la reference for
you. i would like to use my time 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, what has been referenced article 1 of the constitution. as the former historian of the house of representatives has written the framers of the constitution were absolutely committed to a body accountable to its constituents was the surest means of protecting liberty and rights. so anxious to affirm legislative supremacy in the new government they failed to flush out the executive and judicial department in the constitution leaving that task to congress and thereby assuring that the legislature would remain control of the structure and authority of both of those branches unquote. 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 five years. the first section of the first article of the constitution provides that, quote, all
legislative powers here inn granted shall be vested in a congress of the united states and in 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 after december 31st, 2013, yet the obama administration unilaterally sought to rewrite the law, not by working with the peoples duly elected representatives but things like blog posts where they removed penalties for employers 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 explained that people would have to have their health insurance terminated under obamacare in violation of president obama's famous promise that if you like your health care plan you can keep it. and then they claimed to spinsds the law's insurance requirements
to a date uncertain. this one letter alone i referenced there suspended the application of eight provisions of the obamacare law. why was this done? to delay the terrible consequences of obamacare until after next election cycle. the obama administration admitted using taxpayer money to pay subsidies to insurance companies under 1402 of the affordable care act even though appropriations for such payments were never made by congress. in violation of article 9, clause 7 of the constitution which states, quote, no money will be withdrawn from the constitution, unquote. in the 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 and his veto. congress didn't appropriate for fiscal year 2015 and yet they funded the program anyway. not withstanding the lack of any appropriation, another in obama care or in that law in the 2014 appropriations bill, the obama administration unilaterally began making such payments in january 2014 and continued making them thereafter. one of the witnesses here today professor jn than turley challenged the rank uncondition stushlity on behalf of the house of representatives that led to a federal district court ruling that said, quote, neither the president nor his officers can authorize appropriations, the ascent of the house of representatives is required before any public monies are spent. congress' power of the purse is the ultimate check on the otherwise unbinded power of the executive and the genius of the framers was to limit the
executive power by a valid congressional control over funds in the treasury. disregard works on the house which is with the necessary place out of the constitution. judge colyer ultimately ruled in favor of the house on may 122015 and found the bobama at minh station. the trump administration ended that funding program. in 2014 president obama unilaterally and unconstitutionally created a program that would suspend immigration laws without authorization of congress. the president urged congress to enact such a program under law and congress did not each when his party controlled both parties of congress. he didn't act unilaterally until 2014. he knew the actions and he did
were unconstitutional and we know that from his many public statements from 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 protests 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 on clearly delegated authority under a statute that was duly enacted by congress. we can debate the policy merits of the authorizing statute, but there's no doubt that the law of 1976 constitutes a clear delegation of congress of parts of the appropriation powers of 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's duly enacted by congress. i would say this in closing. it's time to drop the politics and pick up the principles. we have the basis for the article 1 powers and until we do that we will move in fits and starts and one day in this direction and the next day in that direction and we'll discover that we're not moving forward, but rather in circles, spinning with increasing speed and smaller and smaller circles. i hope this hearing can help right our ship and help provide us an anchor as congress moves ahead. i look forward to hearing from our witnesses here today and i yield back. >> i thank the gentleman from louisiana for a statement and i now recognize the chairman of the full committee and the honorable gerald nadler of new york. >> thank you, mr. chairman and thank you for convening this hearing on this important topic. i would also like to thank the
witnesses appearing here today, donald trump's emergency declaration comes from across the political spectrum because this debate shouldn't be about partisan politics. it should be fundamental to the constitutional democracy and namely that the chief executive cannot unilaterally represent funds by the people's representatives. article 9 makes it unmistakably clear that, quote, no money should be drawn from the treasury for appropriations made by law, closed quote. president trump violated that basically when he -- when he enacted a so-called excuse that congress explicitly rejected. the only emergency was the fact that congress refused the president what he wanted. that kind of bad faith action by the president is a violation of the oath of office to faithfully execute the law. in addition, it allows the military requires use of the armed forces, closed quote. those funds can be used only for
construction projects that are, quote, necessary to support such use of the armed forces, closed quote. this was supposed to be used for actions such as building airfields to help fight wars overseas. a war, however, cannot possibly be, quote, necessary to support, unquote, a military operation on the border because the related laws expressly prohibit the military from engagement in law enforcement activities and the military therefore cannot enforce the immigration laws or drug smuggling laws. that means the president's actions are doubly unlawful and there's no real emergency and even if there were one the president can't redirect military funds for the purpose expressly prohibited by law to the military. this past tuesday the house passed a joint resolution to determine the so-called emergency. that was an important first step in reasserting congress' role as a check for president butrump's unlimited appetite for power.
i hope my colleagues on the other side of the aisle will take a look at the 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're going to collect all of the guns in the country and melt them down the way they did in australia? i would say that was unconstitutional, but the people when uphold this emergency power now would have to say to be consistent that this was the proper use of the president's use of power. no president should have that kind of unlimited power and that is what is at stake here. >> but this hearing is more than debating the legality of the federal 15th emergency declaration. his decision to invoke the
so-called emergency authority should give all of us great pause. it goes beyond the ability to redirect funds in order to build a wall. the national emergencies act, by which the president can declare an emergency was enacted by 1976 to curtail authority that had come before. it provides a general framework to which the president can declare national emergencies and to which congress can review and terminate them. it allowed congress to terminate any emergency by the majority vote in both houses. in 1983 the supreme court held that congress cannot help veto ak actions and 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 majority. consequently, congress amended the national securities act to be consistent with the ruling. congress abdicated a substantial
amount of his 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 and unlikely occurrence or we need a veto-proof majority which is difficult to muster. as to prdz as to president trump's bogus emergency i think we should vote to terminate it. if they can tell you with a straight face that there san emergency at the southern border. take the politics away and this would not be a close call. whether we have this emergency or future emergencies declared by any president it should not take a super nmajority of congress to stop the president from abusing power. as elizabeth will describe, there are numerous statutes to give the president a broad range of potential authority including the ability to bar certain exports or 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 type of discretion with two emergencies, but an emergency cannot continue forever. so to shift the burden of inertia, we should consider legislation that should set a time limit for emergency requiring that they automatically expire after a short period, say ten days, unless congress ratifies the emergency declaration by law. this type of sunset provision and i emphasize it should be in the days and not the weeks would restore the authority and the responsibility to change the law to where it belongs in congress. we should consider separating out emergency statutes and are designed for true emergencies and which ones use the term to describe other emergencies within the executive branch which do not involve truly urgent circumstance. i am eager to begin this important dialogue. i thank the witnesses for their
participation and i look forward to their testimony. i yield back the balance of my time. >> thank you, mr. nadler. >> i'm going to introduce the witnesses, but i would like to introduce them individually before they speak rather than as a group, so i'll first, i think before we introduce this time we will 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 it is the truth to the best to your knowledge, information and belief? thank you. >> inquiry. >> yes, mr. johnson. >> i think we left out the phrase so help me god. >> we did. >> could we have the witnesses do it again for the record? >> they want to do it, but some of them don't want to do it and
i don't think it's necessary and i don't like to assert it my opinion on other people. >> i don't know that we should abandon it now. can i ask the witnesses if they would choose to use the phrase? >> mr. chairman. >> mr. nadler, if any witness objects you should not be asked to identify himself. we do not have religious tests for office of anything else and we should let it go at that. >> could we introduce the first witness? >> it is noted for the record. >> it is the co-director for justice, liberty and national security program. he is the author of numerous articles and reports regarding civil liberties and the author of an extensive piece in the atlantic title and what the president could do if he declares a state of emergency. before comes to the center, it served as russ feingold and the senate judiciary committee and the trial attorney for the civil
division of the department of justice. she received her j.d. from yale law school and the daily hawkins on the u.s. court of appeals for the ninth circuit. she received her b.a. from yale and a masters of music degree in performance from the juilliard school. welcome and we would like to hear your testimony and you have five minutes to --? chairman cohen and ranking member johnson and members of the committee. thank you for the opportunity to testify on behalf of the 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 declares this emergency for the purpose of getting around congress which had repeatedly refused his request for funding to build a 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're akin to an advanced medical directive where 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 advanced directive to deny life-saving treatment to a patient who is conscience and clearly asking to be saved. congress passed the -- 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 re -- i'm sorry, unless the president renewed them. it allowed congress to terminate
it using a veto, and it required congress to meet every six 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. expraegz expirations of emergencies after a year after default have become the exception. the president routinely ignored the state of emergency for years on end. this was current in 1983 and held the legislative veto 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 six months to review existing emergencies. in addition, when congress passed the act it didn't include the definition of national emergencies. the legislative history makes clear that this submission 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 court should also play their constitutional role. while the national emergencies act gives the president tremendous discretion and even the broadest of discretion can be unlawfully abused, but these responses are not enough. we've now seen how the permissive legal scheme can be exploited. the next time the stakes could be even higher. the center has cataloged 123 statutory powers that are available to the president when he declares a state of emergency. these are incredibly potent authorities including the power to take down or shut down
facilities to freeze americans' bank accounts and detail the armed forces to any country. congress should act now to pass common-sense reform that present the president's flexibility in a true crisis while better safeguarding against abuse. i've made six recommendations in my testimony and i'll flag the top two. 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 ten days. if congress doesn't vote to continue it, this again, would give the president ready access to enhance it when he meets 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's past time for congress to re-assert itself in the constitutional role as a co-equal branch of government and again that something all of the witnesses here agree on. >> thank you. now we have miss alvarez who is a teacher, a mother, a grandmother and a border land owner. her family has lived around the border in star county, texas, for at least five generations and she's received letters from the u.s. government with intention to take her property for the intention of building a border wall that would cross her backyard. you have five minutes. green, go, yellow, you're getting close to ending and red, over. thank you, miss alvarez, we appreciate your attendance and testimony. >> good afternoon, thank you chairman cohen and ranking member johnson and members of the committee for inviting me
here to share my story. my name is naida alvarez and live in star 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'm hear today to testify that there's no emergency where i live and there's 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 for at least five generations. i have lived on this land for more than 40 years. my father lives next to me along side the land where my grandfather lived. we still use a wooden corral built by grandfather. 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 to my family's property. to do so, they would have to cross the river and they would have to climb up the soft bluff that runs along side the river at the end of my property. the river and the bluff create a natural barrier on my family's property, a bare year between mexico and my land in the u.s. because my property and my family's property next door 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 that 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 to show a wall and a maintenance road to be conducted feet from the back of my house. this described 150 wide enforcement zone between my house and the river. but the river is 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 letter -- january letter, i called a u.s. army corps of engineers specialist who asked how they would 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 stares at a wall. 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 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
l legalities of the president's action, the bottom line is the federal government is threatening to take my land to fulfill a campaign process. i can tell you there's 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's no need for a wall on our land. my family should not have to sacrifice our home to a campaign slogan. we're 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. >> thank you. we appreciate your attendance and testimony.
mr. jonathan turley, another individual with the louisiana background, although he's a greeny is professor of public interest law and the george washington university school of law. he's written in areas ranging from constitutional theory. in addition to being the author of over three dozen academic articles, he served as counsel in many noted cases. he's also a star of stage, screen, and television, at least the latter. he received his ba from the university of chicago and j. d. from northwestern. we appreciate your attendance and welcome your testimony. >> thank you, chairman cohen, ranking member johnson, chairman
nadler and the members of the s subcommittee. it's an honor to appear before you to talk about this very important issue. as some of you know from my background, i'm an unabashed and unapologetic scholar and for that reason i tend to favor congress in fights with the executive branch and i often appear before members of this committee like a broken record warning congress that it is frittering away it's authority to expanding executive power. like my testimony, most of the testimony of scholars along those lines have been ignored. the national emergency act is the arch type for this long acquiescence of this body. it ultimately was passed as an unfettered grant of authority so allow declarations to occur with
little check of this body. this congress is also tied that type of unfettered authority to a history of appropriations that often place 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 20 years earlier, this body prevailed in the youngstown sheet and tube company. it was one of the most important rulings ever to come down from
the legislative branch. in that opinion, it was warned that the type of emergency powers being claimed by president truman would be a pretext for authoritarian rule. that emergency powers would tend to kidle emergencies. this congress responded 20 years later by creating a law that allowed that very problem to occur. there's an old adage that the road to hell is paved with good intentions. if that's true, they passed the nea on the way. through a series of amendments that i go there in my testimony, what came out was a basically an unfettered grant of authority. the result has not been surprising. we've had more than one national emergency declared every year since the nea was passed. it would be funny if it was not tragic for this body.
even express provisions in the law like this body meeting every six months to review emergency powers simply ignored because it was too inconvenient or burdensome. if you sense a threat 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. a court isn't likely to do it. there are two possibly challenges to the current declaration by president trump, one is the source of authority and the other is the funds. the source of the authority i'm 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, 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 doesn't define it. as for the source of the funds, there's a simple math that leads to a simple problem. this body gave the president $1.4 billion. we can fight -- debate as to how that can be used. the administration's identified multisources that bring up the funds to 8 billion. even if a court was to enjoin two of those, 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 it was said, if my fellow citizens want to go to hell, i will gladly help them. it's my job. this body has been hell bent for a long time. and you're not going to be rescued by a federal court. it will send you down a path. instead focusing on the lawsuit which not particularly promising will look at correcting this law and regaining the authority that this body unwisely frittered away in 1976. >> thank you, mr. turley. his practice is strd on providing representation in the health care industry. he's had a long 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 serves on the transition team of president george w. bush. he received a jd from georgetown university and ba from penn state. he's not as commonly on television as mr. turley, but he started with the team of describe and gerson as tv personalities. we welcome mr. gerson. >> thank you. pleasure to see you again. i give a a nod towards ms. escobar who's home county is my client in the litigation that professor tribe and i are sharing which doesn't bare the characteristics criticized by professor turley. >> i'm a lifelong republican. i've been a republican longer than some of you have been alive and i'm a conservative republican and i enjoy the support of a lot of conservatives with respect to
the position that i'm taking today. indeed i take that very position if i agreed with president trump with respect to his desire to build a border wall. i don't. i'm a tech wisdom hard and know a lot what darpa has done. i don't favor open borders. i'm here as an advocate for the constitution. and in fact i agree with 95% of everything that i've 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 contrariwise to congress
in the previous administration as i am presently. even i agreed with the president i'd have the same position. your job is to revisit the act and i am hopeful that you will do it. and in so doing that the congress will stop acting like a par la meant ri body and will act like the 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. differing 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 is written -- it looks like a -- if i can give you a -- things slapped on one another, eliminating old emergency that is persisted for years. the reason why i think that a court will be able to do that is that i don't think it can be the referee of your own game and i don't think that using just the text shlist tools, that emergency requires a definition. it's got to be some kind, unplanned, sudden, that requires action in a time frame too short for the two political branches to confer and act. that's 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
stuart. and that's what i'm asking -- that's what i'm asking you to do as far as the litigation goes and our ability to challenge the act, i'm comfortable with the positions that we're taking. it's a coalition of organizations left, right and center, none of us views it as political. it's simply that we believe that it's constitutionally impermissible for the president to take action in a -- in what really is a nonemergency when the congress has already spoken and told him not to do the very thing that he's 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 happen, was congress should have the last word, but the definitive word. i asked that my prepared
testimony be a part of the permanent record of this hearing. >> all of your testimonies will be part of the permanent record. and we appreciate your testimony. we'll proceed under the five minute rule for questions. and i will begin recognizing myself. 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 the second one was the idea that it ended after a certain number of days, 10 or 30 or whatever. you had some others in your testimony. can you go over those quickly. >> thank you for the question. my third recommendation was that congress could renew states of emergency on a periodic basis up to five years, after five years, it can no longer be called an emergency. it is become a new normal of sorts and at that point congress should be passing permanent laws or laws with sunsets in order to
address the phenomenon rather than to pretend it's an unforeseen circumstance that's 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 irrelevant to the nature of the emergency. there's no requirement in the act that there be some kind of connection. now a few of those laws have some additional language that c cabins how they can be used. 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. if 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 six months on expenditures related to the emergency. these reports have been filed since 2003, they've gone missing. i think congress is getting them, but they're not publicly available. there should be a requirement that the reports be made public and second that the reports cover not just expenses, but the details about the activities and programs that have been put in place. those are my recommendations. >> thank you. only your first recommendation it was that there's significasignificant change -- the president could
say that there is a factual change on the border and if he did such how does the first recommendation -- how would that interface with our current circumstance? >> 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're entitled to make under the law and they're seeking lawful entry into the united states. that's not contributing to the problem of unlawful migration as he cited as the emergency in the declaration. >> maybe you're right and i'm missing it in its official declaration. in his verbiage, he's talking about drugs pouring in and the women being bound and taped, and that's something new i think. >> it's new that he's talking
about it. i think -- 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. an emergency has a meaning. it's 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, crimes, are things that if you look at the government's own statistics, they're not getting worse, if anything they're getting better. >> thank you. what are your thoughts about her five recommendations and do you have any others in addition to that? >> 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's a problem, what's an emergency.
you can define emergencies. but i think the key failure of the nea is this body doesn't have to take an act to continue. originally, the bill had that in it, originally the congress did the right thing and said that after certain period we have to affirmatively agree that there's an emergency and for it to continue. 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 what type of conditions are going to trigger what type of provisions as long as this body has to agree that an emergency existed, then you could hold a hearing and address many of the issues that my cowitnesses identified and i agree that those are relevant factors to consider. >> thank you. mr. gerson?
>> i'm not sure that life can't continue very well without this act all together because one starts with the constitution but speaking to the act and you're here to amend it, remember it's purpose was to clear the deck of a bunch of emergencies that were a decade old and were littering the field and remember that your fundamental power is the power of the purse and so what you ought to be doing, it seems to me, by amending this statute clearly, and everybody agrees about this, you need a plain english definition of what constitutes an emergency. what you're saying is we're giving license to the executive to carry on on this basis without our intervening to cut off that activity by taking action with relationship to finance, what your article one powers are. you're 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 practical time frame should be attached to that and the rest should be up to considering how this will work and 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 will work in practice. that shouldn't inhibit a president, for example, with respect to exercising the war powers assuming there's an emergency. avoid those kinds of problems. avoid the kinds of problems that the resolution created. i think with historical reference, with a look back, 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. >> thank you to each of you and we'll come back to this. but i recognize the ranking member mr. johnson for five members. >> thank you. can you describe for us how the obama administration's use of nonappropriated funds for health care insurers differs from this current situation using a statutory authority here? >> there's a very significant difference. i was a bit alarm md when i saw some members talking about the using the precedent we created to challenge this declaration as a body. and in many testimony i strongly discouraged that. one of the reasons i took the burwell case, i believe a lot of the problems we have today is that there are some types of violations by presidents that can't be challenged in court. they're blind spots. and legislative standing solves
that problem. this body worked for decades to get a court 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's not the same situation is that what president obama did, they came to congress to ask to funding for the insurance companies under 1402's program. and this body declined to do that. the administration then declared that this would be a implied term appropriation, much like the appropriations that pay citizens their tax refunds. congress doesn't require the irs to come to you and say -- you give an open credit card. this is something this body does not like to do unless it looks at whether it wants that type of
appropriation. what the administration said we'll pay this out of the treasury. that's what the judge said was a no-go. she said, this is unconstitutional. congress never said that. that is not what president trump is doing. you can disagree with his policy, but he's 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. but protect the precedent that we were able to win in burwell. >> thank you for that. to what extent to the supreme court consider presidential rhetoric when they're interpreting statutory authority? are they going to consider the legal provision it governors or look at comments made in the press? we rememb could people have sued to keep their plan even if they didn't have that right? >> i actually may create a course on presidential rhetoric and it's use in constitutional interpretation. i have to say that i disagreed with the ninth circuit to the degree to which it utilized the campaign statements on reaching its decision on immigration. i thought the first immigration was dreadful, it was poorly
written, poorly defend. it was 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's going to be determinative. i'm not sure it's that relevant. >> tweets cannot alter an order or a statute. that's my words not yours. i have a quick question, it's on honest question, you described your property, you said in some
part you use a wooden corral, there's a soft bluff that separates the river and your property and you said very conclusively, that there's never been in your words, no drugs, no gangs, no terrorists have ever come across this property. do you have video surveillance of the whole length of the property? >> not the whole length of the property but towards the part where my home is, and my parents' home, yes. >> does someone monitor it throughout the night -- the question is, how can you be certain that no one has ever crossed your property illegally. >> well, it does capture border patrol people going through my property and it sends alerts so if somebody else would be passing through there, i would get an alert. i haven't gotten any. >> thank you. i'm out of time. i yield back. >> thank you. now recognize the chairman of the committee mr. 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. but i think that on this one, at least as to the use of military funds, he wants to move military funds to -- to have the border guarded by building a wall with military funds, presumably the wall is a military asset for military use. but the act specifically says the military cannot be used to enforce domestic law. so how can you justify the use of military funds for military purpose for military purpose that is denied to be a military purpose by law? >> that's an excellent question. and that will be an issue the court will have to deal with. i have to say that i'm skeptical
because the military has been used on the border in the past. presidents have called the military to a border. it's a classic use of the -- >> can they be challenged in court? >> not that i recall, but i doubt a court is going to seriously debate whether a president has the authority to send the military to the border. your point, mr. chairman, is a good one to the extent that they're doing law enforcement duties, that does bring it up. that's -- >> immigration law is law enforcement duties. what would they be doing that isn't law enforcement duties? >> the border is a national security border. it is a classic use of the military. they patrol the border. i'm saying how i believe -- >> they patrol the border against foreign troops. insofar as they're talking about drug smuggling or illegal immigration, that's domestic law enforcement. >> i would say the 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 -- >> no. but i expect a federal judge to say you can't order troops to the border to deal with drug smuggles. national security. >> i do think that this body can correct this property. it can create clarity -- >> can you comment on that? >> on which part of it? >> on the use of military force to enforce domestic law or is that what's happening here. >> i agree with you in the abstract, but in the real, i have to agree with you, because that's a point i make in our litigation and i expect it to be accepted. i think 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's just a question of interdicting immigrants, that's -- that doesn't relate to the enumerated power that the -- >> so the expressed purpose of the wall, which is to interdict immigrants and prevent smuggling, would not be a military purpose -- >> again, i'm on the public record in our filing saying that. and i happen to agree with it. but i'm not free to say anything else, either. as to the -- as to the other issues, can this be vindicated, of course it can. i'm not burdened by -- i'm not commenting on anybody else's lawsuit, but i'm not burdened by the problems that congressional standi standing raises. >> let me ask one other
question. i agree with you on congressional standing. i'm glad of that. in fact, it gets to a different question which is probably a little off topic. the justice department maintains as a matter of law that no president can be indicted, as a matter of law. okay. there's a lot of positions one my contested. if the justice department thinks it can indict you for something or other, it indicts you, you move to dismiss on the grounds whatever the grounds are and the court will decide. 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's a catch-22 there. but i -- >> i'm familiar with that provision. it was written with respect to the potential indictment not of a president by the vice
president. and it wasn't tested. it served -- >> my point it cannot be tested. >> i think you're probably right. i think there's a range of disputes that will never be tested. there are some that relate to war powers that will -- >> let me ask one last question. because that's a different topic. what would you think of a statstatue that said any presidential declaration emergency automatically ends in ten days or 30 days if congress hasn't affirmatively acted to extent it or ratify it? >> it's impractical. and my fundamental look at that is not so much philosophical. how quickly 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 debate forever and come up with conclusions. what if we were under a cyberattack that hit us on many -- >> the president could act -- declare the emergency, act on the emergency, congress within 10 days or 30 days could decide to extend it or not. >> i go back to something i said earlier, when you get to what the wopower is, it's the power the purse. what you're going to do is something that relates to the power that you have if you disapprove of what the president is doing, you're going to take steps to cut off his ability to do or her ability to do it. >> either you act to -- either you automatically cut off the declaration if congress doesn't declare it, to act on the power of the purse, requires a two-thirds vote to overcome the
president's veto and that's shifting the burden. >> i don't say that you're not going to have a practical and constitutional difficulty if you do what -- >> that's -- >> let me just say this. i think that with clearer definitions as to what constitutes an emergency, you're going to be on much better grounds not only judicially, but potentially. >> clearer definitions are certainly in order. but without a time limit within -- which was originally the intent in 1976. without restoration in some version of that, it seems to me to say that congress has stopped the appropriation of money two-thirds vote is turning article one on its head. >> well, what happens -- it's not my job to ask you the questions. but yours to ask me. as you war game this in committee, what is it that you think happens after the
expiration of 10 days or 30 days? >> whatever the authorities the president was granted cease. >> and what if the president doesn't do what you want? >> that's always the question. hopefully -- >> yeah, but, again, i think the time limit issue is somewhat artificial. that it may be helpful to have a time limit. but what happens at the end of it? i think you need -- i think you need to think that through. >> thank you very much. my time is very much expired. >> thank you, sir. mr. johnson mentioned there were flights coming. mr. armstrong of north dakota is recognized. >> professor, i'm going to start with i think there's -- this is a great conversation to have. this an -- we've moved 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 present becomes highly polarized and we all know that very well. if you didn't before this week in congress, you sure do today. 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? just kind of along the lines of being careful what you wish for, you might get it? >> there is a chance of bad cases making bad law, and that's always a concern that 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's 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 -- will likely go through and that's more than enough for the next two 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 theout set o. and one of those is going back to the original draft. >> and that's 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. before we can ever get to that, we have to deal with the statutory framework as it exists. you only go to legislative intent if there's a discrepancy
in the statute, and i would argue, it's so vague in so many different ways and so broad-based that i don't know how you would find a discrepancy in order to go to those kinds of questions. >> you can't. and history works against the challenge. most of the emergencies that have been declared are largely economic and diplomatic issues. and frankly they're not that significant in terms of emergencies. most people -- frankly the united states had no idea that there's national emergencies ongoing. they didn't know we have an emergency over uncut diamonds from africa or people who might be passing transfers of well. past administrations have used it to get an edge or to deal with a problem internationally
on a unilateral base. so when a judge looks at this, is she really going to say, well, even though we have never ruled that a president cannot exercise the authority in this way, even though we have dozens of still ongoing emergencies, i'm going to use my judgment as to what constitutes an emergency on the border, on the nea, even though emergencies aren't defined. you might find a judge like that, but at the end of the day i don't think you're going to prevail. that's what judges are not supposed to do. they're not supposed to substitute their judgment. when people say, look, it's not an emergency because look how the numbers have declined. there's less than 400,000 people being captured or arrested along the border. once again, a judge is going to say, look, it's 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. >> in my effort to get everybody to their flights, i will yield the rest of my time. >> thank you, sir. mr. raskin from maryland, you're recognized. >> 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 case where president truman came to president 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 the supreme court ended up saying, no, it's a red light by congress, you can't run the red.
that's exactly what's happened here. the president came to us asking for money for the border wall and we had a disagreement. we didn't give it to him. now he very clearly wants to go around the back of congress and say i'm going to go ahead and use this money anyway. so we say it violates our power of appropriation, the power of the purse and the steel seizure case is on point. no president has ever been able to invoke one of these rare emergency provision statutes for the purpose of circumventing the 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'm thinking? >> well, i'm not dealing with the problem of legislative standing in the litigation that i'm 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 -- >> you're actually facing something like use of imminent domain power? >> that's right. and the planning that has to do with that. i've 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 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 ground -- on just the grounds that you describe. obviously you've read our papers
and endorse everything that we've 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 -- >> are you speaking in constitutional or statutory terms? >> i'm speaking in constitutional terms. that a judge doesn't have to exceed textlism -- >> but we don't have a constitution definition of emergency. >> but more importantly you don't have a statutory one. >> at least the word emergency appears in the -- >> but it's undefined. 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. we can win this case on statutory grounds for reason that mr. nadler pointed out and you -- >> and i agree with mr. turley that on the statutory grounds it's more ambiguous because it appears to be a delegation to the president. if the interpretation is completely deranged and off the wall, then maybe a court would -- >> there are two parts of the statuto statutory grounds. i think a court can say this is not an emergency because it lacks all the criteria that any emergency would need to have. but with respect to the use of fen funds, i'm very confident that we're going to prevail on that. >> you want to interrupt the statue in a way that's consistent with the constitution and the constitution nil at a times a reading which protects congress's power over the purse rather than giving the president
the license to mangle the legislative will. >> we're leaving justice jackson concurring and moving to justice fra frankfurter. certainly a constitutional avoidance can be applied and we can win this on a pure statutory ground. i think it's 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 legislated. >> okay. mr. turley. >> this is part of the fun that they have, it took everything i could not to push the button. the i strongly disagree with
stuart but we can put that aside. what i would encourage the s committee to consider is there's no need to use that. there's been a long suspicion that judges don't to standing when they don't want to deal with a tough question. you risk a judge avoiding these difficult questions and saying, you know what, i've come to a different conclusion. you don't have standing. you don't have to take that risk because you've got people who are arguing this. but the one thing i have to disagree with this, and i say this with great respect -- >> a minor particle of it, yeah. >> i would disagree with you. this is not youngstown. the -- in youngstown, black said there's no statute underlying the exercise of authority.
there is a statute here, you gave them a statute. >> we had a very specific answer as to the request for money for the wall and the president was clear about that. we were clear about that. there's no -- >> that's 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 if there's an underlying statute -- >> that's been overriding ren by a -- >> i don't think statutes are overridden by statutes of any kind. you decided how much money to give the president. >> i'm going to have to yield back. can i ask you one -- would you agree that congress should use its power under the current statutory framework to say there's no emergency and override the president? >> yes, i love congress standing
up for its authority. >> i yield back. >> you're welcome. next we'll recognize mr. kline. >> thank you, mr. chairman. i want to continue that line. mr. turley, in the absence of a positive act to prohibit, are we to infer -- i know congress not providing the money that the president requested, that there's a statutory prohibition to any action to provide money for said wall? >> it doesn't work that way. it's like woody alan saying i wish i had a positive thing to say, let me give you two negatives. you have a positive authority under the nea. your decisions under appropriations are formed by various issues, how much money you want to give, under what circumstances. a court is not going to use that as a constructive amendment of the national emergencies act. it's not going to do that.
and so what you have is what jackson described as the first category where a president's authority is unassailable. a grant of authority by the congress to the president that he is using and you can disagree with the decision that he's 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. >> i want to drill down -- well, i'll get to you in a minute. the authority that was granted by congress in 1976, congress had enacted over 470 statutes by 1973 and so what we're doing is we're allowing under the statute using appropriated funds for a military in support of military action. didn't -- wasn't the military asked by immigrations customs
enforcement for assistance at the border. >> part of the problem is precisely that, but more importantly, unlike the first immigration order, this is likely to be arm armour plated. where there is an issue, will go to what exactly they're doing along the border. 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 long standing problem. when president obama launched the libyan war, i represents republican and democratic perhaps who opposed that war.
president obama funded that war out of loose change. 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. >> isn't it true that it's not -- emergency authority is not required to move money around within departments in various cases. >> that's right. >> so 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. looking forward, i think we have a great opportunity here to make article one great again. and so i want to follow up on your suggestions. publicly available reports, can you expand a little bit about
what's missing and what we need to be doing? >> 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 six 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 at that point were issued under the international emergency economic powers act. and president bush delegated to the treasury the authority to smt those reports. from that point on, you can't find them in the congressional record. they were no longer read into the congressional record. they're not publicly available from 2003 on. we haven't been able to find any of the reports on the 9/11 state of emergency. so that -- if you can find those and make them public, that would
be terrific. we are of course -- have filed a 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 was a little too minimalist in what it asked in the reports. >> 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 stated it multiple times. he believes there to be an emergency at the border and i concur with that given the humanitarian crisis that's ongoing and the lack of ability of i.c.e. to handle that threat and 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 toward that end. and with that, i yield back. thank you. >> thank you, sir. good maiden speech. you're recognized. >> thank you very much. i think it's great that we seem to have a agreement by all four of our witnesses today that congress should assert its power to declare this national emergency null and void. so it's great we've got a starting point. i want to look at a little bit of the underpinnings on the differences of opinion that folks have. professor turley, you've given your opinion that the absence of an explicit definition of emergency gives the president virtually unfettered authority to determine when we have an emergency. >> that's correct. >> okay. so you've argued that if we accept your definition that this president or a subsequent president could, for example, declare a gun violence to be a
national emergency, right? >> i don't see a basis to deny that because there's no definition. >> okay. and similarly if we accept your definition or your argument that there's no definition, then a president could declare climate change to be a national emergency? >> yes. 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 the president could violate other amendments. the congress could not pass a statute that allows for the suspension of the constitution unless it's a suspension of habeas correspond miss. when did a national emergency start encroaching on
constitutional language or implicit constitutional language? as i was looking at your argument that the absence of a definition means there's unlimited authority, i did what a lawyer started looking at dition dictionaries because in the rules of statutory construction, we look at the statute and we look at the plain language, the plain meaning, so when i looked at black's law dictionary and websters 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. goteen, you've pointed out, you spoke in your
testimony about abuse of emergency powers. can you speak to whether the situation at the border meets the statutory intent, or common definition of an emergency, and whether it may be pushing so far into the idea of undermining the constitutionality? >> thank you for that question. i certainly agree with professor truly 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 aun lawfully abused and i see that having two dimensions in this case one i do think courts 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 i think courts are allowed to consider, take judicial notice of or look at a dictionary. so i don't think that the
president could say a potted plant is an emergency. it 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 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's a constitutional prerogative of congress that he is trying to undermine with this declaration. and professor truly's analysis tweets congress's repeated votes against the funding the wall as if they were legally irrelevant and i don't believe they, are and i think they could factor in, in a number of ways but the one i mentioned just now is one.
>> if i could quickly move to mr. gurson, 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 security measures other than the wall proposed by the president. >> that's the constitutional crux of our argument. that's the point at which it begins. we wouldn't be able to knit foo into justice jackson's third criterion without disobedience of a congressional edict by the executive. if you are implying to agree with me, i very much do believe that. >> thank you very much. i yield back. >> thank you. republicans have exhausted their witnesses and so we'll recognize ms. garcia from houston.
>> thank you, mr. chairman. and i just wanted to make a little comment here, we keep talking about campaigns and campaign slogan, and i think one of the colleagues mentioned make article one great again, i think a better button might be just like we had, it's the economy stupid, it should probably be it's the constitution, stupid. but maybe i'll 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. afrl rez because obviously you traveled a long distance, you come from my home state, i too grow up on a farm, and i don't recall, although i'm not next to the border, i'm
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 it was our concern. so tell me again, you have not seen or know of any rapists or murders or drug dealers or human traffickers or any people trying to do harm to anyone around your property, or any of your neighbor's properties? >> not at all, ma'am. >> and have you had a chance to visit with any of the property owners adjoining you to see if they share your concern about what this proposed law might be doing to your farm and your livelihood? >> 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 star cun, and i can speak for myself and my area, we do not want this wall. and we do not see a crisis. especially rapists, gang members, or an invasion. >> and are you the only party in this lawsuit? or is there a number of other parties in the lawsuit that you mentioned? i'm not familiar with it. >> there are a few other parties. >> there's a few other parties. well, in your opinion, because you're down there, i mean do you see a crisis of something that as one of my colleagues has described, of grave concern, of a change, or something that may be endangering to your area?
>> not at all. >> not at all? well, thank you again for coming, i know it is a long distance. and mr. gersen, i wanted to first tell you that i think el paso county is in good hands. and i wondered if you had reviewed or had listened to the recommendations that ms. goiten put forth in her opening statement, and had any reaction to her recommendations, or do you have any other recommendations that we should consider? >> well, i suggested earlier that i'd start with the definition. but as to ms. goiten's views, i've read her testimony, i find it edifying, i mean you've noticed that the range of disagreement here is very small. in terms of what your legislative purpose is, is going to be. so i would recommend considering all of those things. 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 said say, i'm someone who normally, in my own political life, supports conservative judges, because they read the law, that they're textualist, that they don't make it up, that they're originalists in terms of constitutional interpretation, i carry that through to this, and much of my criticism has to lay at the feet of the congress, which has abdicated responsibilities that it has. i know from a 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's a bad policy to follow. whether you're talking about who's covered by the civil rights act, which is constantly being litigated, or anything
else. and so i think it's fair to say that there's pretty great agreement in this room that there's been an erosion of congressional power, as i suggested earlier, too often the congress acts like a parliament. it's 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. >> what do you think about this whole notion of time limits, whether it's a termination period, or a come back and get extended, or any of those other options that had been mentioned? >> i said to mr. nadler earlier on, that the concept of, that you ought to address the question of time limits, but recognize that it's inherently problematic. that you've 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've got to play that through, when you decide what to do. and you're not doing it just for
yourself, you're dos it for future congresses, you're 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. >> thank you. i think my time is up. and i yield back. >> thank you, ma'am. now, i recognize judge gohmert from texas. >> thank you. appreciate the witnesses being here. reading earlier, article quoting from "washington post," and so many of abc, nbc, repeatedly calling what's going on on the border a crisis, constantly using the word, the crisis word, but then again, that is when president obama was in office. and now, that he's not in office, those same media are now saying oh, there's 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% adult males coming into the country looking for jobs from mexico. and now, it's a huge majority of family units, alleged family units, bringing children, because they know if they bring children, they're going to be allowed to stay here. from the nights, and i certainly appreciate testimony from anybody that lives there, but of all of the nights i've spent all night on the border, i've seen a crisis. and the crisis doesn't stop when the homeland security takes over as some of the border have related to me, the drug cartels call us their logistics, and i said like the commercial?
right. 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 has 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've raped women, i guess it's 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're self serving, they're an abomination, but if it is legislature specifically saying this is where you spend the money, it's a good, it's 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're aware, i mean when we talk about maybe a time limit, it 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 had the comment that first and foremost, the 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 opinion, he said look, if you guys in congress aren't willing 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, but that would seem to be, i mean even though we have given up all this power, professor turley, it looks like the courts have been pretty consistent in saying you gave it up. but it's your job, not ours. do you know of any cases of courts of appeal other than
maybe a ninth circuit that have said otherwise? >> no, in fact, 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 beacon where he looked at this issue of the laws expressly stating that the congress has to get together every six 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 to the rest of the act, that provision is the model of clarity. it says six 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're going to ask a court to do is to go deeply into
a policy judgment, of what constitutes an emergency, and you're 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. >> 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. i yield back. >> thank you, judge. i think we, i appreciate you coming to the hearing and the previous time we've been here, we've seen a lot of unanimity that this needs to be something that needs to happen and maybe we will have a bipartisan result to this. ms. escobar is next and we appreciate your constituent, and your lawyer. >> i do, too.
thank you, mr. chairman. and many thanks to our panel. mr. gursen, thank you, especially, for representing the great county of el paso. for context, let me tell all of you about my community. i'm from el paso, texas, the beautiful vibrant new ellis island, which is on the u.s./mexico border. with absolute 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 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's 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 multi-generational 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 intro spective about these issues in order to find real solutions. so the drug issue, which is one of the reasons 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 five years now. what happens is that they come in what's called a surge. this is the fourth surge in five 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 25, 2014. mr. chairman, i ask unanimous consent to enter this into the record. >> without objection. so be done. >> 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'm afraid of is the willingness i've seen by some to ignore the responsibility we have as a co-equal branch of government. i'm 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'm afraid this nonemergency will steal or could
steal up to $275 million from fort bliss, one of this country's most important assets. money that's 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 heart-breaking 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 land owner, ms. alvarez, everything that you have had to endure, as an american property owner, at the hands of this government, you've obviously had to hire lawyer, you had to fly to washington, d.c. to defend your property, and i am very curious about what this government is putting you through. >> this government has created a
loss of family members, a loss of friendships, a division amongst us in our communities, because 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 up a barrier, a wall, or so, that is not going to work, and that has been proven not to work. i'm here, i've 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 part 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. >> thank you.
>> thank you, ms. escobar. ms. dean, you're recognized and thank you for deferring. >> their. 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's 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 condemn 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. >> without objection. so done. >> it is signed by such people from both sides of the aisle, with decades of leadership experience in bipartisan, different administrations, such as madeline all bright, james clapper, leon panetta, susan rice, just to name a few and here are a few of the 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 substance tive findings. and 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'd like to ask the question and mr. gursen, i'll pivot to you, if i can, specifically, the president cited ten usc 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. >> i'm an erstwhile pennsylvanian, and military veterans of perhaps i have some useful knowledge there but that's not why i'm here. i'll address it, if you'd like. the issue that we face, that you just described, is something i talked about earlier and you're in essence paraphrasing something that i and professor tribe and the lawyers at wikle far have helped us, have said in our brief, it's 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. this is the reverse of things. 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's your, it's your job to find the law. i'm very appreciative of the remarks by the people who live on the border. my son's godfather, his name is sosano ortiz, he described himself as a wetback, who made good under the name of george ortiz, as he moved from texas to california. i'm conscious of these issues. but as i've said, i would be here making the argument that i made, even if i agreed fully with the president as to the need for the wall. there's 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 said, as i said out the outset, that i am making a fundamentally conservative point. plenty of conservatives agree with me, as you know, from my descriptions and the documents here, that i'm affiliated with people well to the right of center, and way to the right of you, and that's okay. what you've heard here and the thing that i hope to take away from this, and i hope 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. >> mr. chairman, if you would allow me, i know my time is expired but a couple of seconds to compliment mr. garsen. a fellow pennsylvanian, i used to teach writing at versailles university in philadelphia for ten years so i so appreciate
your plain english when you say there ain't no emergency. thank you, mr. gersen. >> thank you. we have, and with unanimous consent, we'll enter into the record the following materials. a cover letter and three articles by professor lea solman, a statement by the constitution project, the project on government oversight opposing dump's declaration of a national emergency, a letter from former gop lawmakers also opposing the emergency deck claig, an article by elizabeth goiten, i think, from 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. i want to thank the members of the panel, our witnesses, ya'll were a great panel. i think in my, 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, very worthwhile. ms. afrl rez, 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 questions to the witnesses and additional material force the record and i want to thank c-span because this was better than michael cohen. this hearing is adjourned.
pasadena is your quintessential southern california community. >> i think there is a balance of reference for the past, people in pasadena are very proud of going to do their business at city hall. and having it be this fantastic, you know, spanish renaissance palace. but we're also home to the planetary society and jpl and cal tech where you have people looking very much forward into
the future in galaxies beyond. >> c-spans cities tour is on the road exploring the american story. this weekend we take to you pasadena, california, with the help of our spectrum cable partners. known for the rose bowl, and its rose parade, we'll talk with authors from this suburb of los angeles. >> july 26, 1943, was l.a.'s pearl harbor. it was on that day, in the middle of world war ii, a thick smog came in. i don't know from what direction. but it got so viscous, and acrid, that police officers directed traffic disappeared, it was the beginning of having smog-related automobile accidents, it was so bad, mothers were dragging their children into department stores and a sort of hysteria built. >> we will go inside the jet propulsion laboratories at cal tech responsible for putting rovers on mars. >> the reason we're here, is to do what has never been done
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