tv Cato Discussion on Border Security National Emergency Declaration CSPAN March 26, 2019 10:13pm-11:49pm EDT
roberts. >> however john roberts votes now that anthony kennedy is gone is going to determine the law of the land. so the liberals want him to come over, and over little bit but the conservatives are trying to hold him back where he always was. meanwhile, you have this chief justice declaring there is no such thing as an obama judge, no such thing as a trump judge, a bush judge, he wants to project a bench that is not political when they all have their agendas of sorts. >> sunday night at 8:00 eastern on c-span's q&a. next, a discussion of president trump's order security emergency declaration. panelists considered the constitutional and statutory implications of the presidents order and made suggestions for what they thought congress should do in response. this discussion took place before tuesday's houseboat to
override the president's veto which failed to get the necessary 2/3 vote. hosted by the cato institute, this is 90 minutes. >> welcome to the cato institute. my name is mr. shapiro, director of robert e lee center for constitutional studies. we pride ourselves on being against executive overreach from before it was cool. today, we are talking about the national emergency and executive power over emergencies in general. in recent years, libertarians and progressives have found
common cause in their concern that the growth of executive powers goes beyond constitutional limits. our constitution actually gives the president few explicit emergency powers but presidents have invoked national emergencies from the beginning of our republic in different ways. after watergate, congress created a framework for regulating this authority. to give the power as the panel will get into, a greater framework to try to regulate it. the 1976 national emergencies act. i bet you did not know that this act, we have had 59 national emergencies declared a 32 of which including the wall emergency are still ongoing. we are still, in fact, in a state of emergency from the 1979 iran hostage taking and also the from the 2006 presidential election fraud. idol i hope that does not alarm you too much. resident trump's decision to declare a national emergency
for the wall and the national border and broader separation of power issues can no longer be avoided. here to discuss all of these issues will be our wonderful panel but before we get to them, let me introduce to do calendar fredrickson who is the president of the american constitution society with whom i'm delighted to be co-hosting this event. >> thank you so much. it is really a pleasure for us it acs to be partnering with cato on this very important event. there are other things going on in washington besides the mono -- mueller report so i'm glad you are all here to discuss another incredibly important topic. so acs, for those of you who may not know us, we were founded in 2001 and we are a
national network of lawyers, law students, judges and policymakers who believe in the values of the constitution of we the people. we work for positive change in shaping debate on vitally important legal and constitutional issues such as the ones we will discuss today. today's conversation on the 1976 national emergencies act could not be more timely. following the longest government shutdown in u.s. history, president trump entered uncharted legal and constitutional territory when he bypassed congress to declare a national emergency to build a wall on the southern border. originally intended to cabin executive power following the watergate scandal, the national emergencies act includes a provision where in congress can terminate the presidents emergency declaration. earlier this month, congress did just that with bipartisan majorities in both house and senate. now, we have four seats and maybe even tomorrow to watch how the veto and potential congressional override play out.
regardless of how these legislative imaginations and, and irrespective of what happens in the court, one thing is true. the presidents speculation has helped to unite civil rights advocates and civil libertarians to warn not only of legal and constitutional concerns but also to act ask whether the national emergency act has become part of the problem rather than part of the solution. so we are particularly grateful to cato, our co-hosts and sponsor for today's events, for their leadership and the mutual recognition that this issue requires us to work along lines of difference to find common ground. today's panelists do have different ideological orientations but they are united in their concern over an overly expensive use of executive power and the concern that we need to rethink legislative framework moving forward.
to get the conversation started today, i'm very pleased to introduce spencer boyer. he is the director of the washington office of the brennan center. prior to joining brennan, spencer served in senior roles in the obama administration including at the national intelligence council in the space department where he focused on issues of the intersection of national security and civil liberties. spencer will get us started by sharing the brennan centers recent research on emergency powers. so, spencer? >> thank you so much, caroline for that introduction. on behalf of the brennan center for justice at new york and diversity school of your law, thank you for including me in this very timely discussion of presidential emergency powers.
as many of you know, the brennan center it has really been at the forefront of the national debate on the use of emergency powers over the past several months. while a future article in the atlantic by the brennan center's codirector eliza gochain got people talking over the winter, this piece followed two years of intensive research on the topic by the brennan center. in december, we published the results of the research which you can find on our website along with recommendations for reform. in january, we also hosted a day-long symposium along with the arch street institute on various acts and emergency powers. the goal was to help start a conversation about whether the legal framework for emergency power in the u.s. strikes the right balance between giving the president needed authorities on the one hand but also safeguarding democracy and essential liberties on the other. little did we know how quickly the conversation would catch fire, thanks to a bit of additional kindling by the president. as you know, and as was touched upon by caroline, president
trump said most of january socializing the idea of declaring a national emergency to get around a budget stalemate with congress. on february 15, after a budget deal had been reached in congress that gave him roughly $1.4 billion for border security, he made good, honest threats. declaring a national emergency to free up funding for a wall at our southern border. evil he evoked emergency power which permits moving funding between military construction projects under certain circumstances. he also announced his intention to transfer funding from other nonemergency sources. the move prompted immediate criticism and pushback on both sides of the aisle, culminating in an historic vote to terminate the emergency which the brennan center and many other groups represented in this room weighed in on with congressional offices and committees. on ferry 26, following february
26, the house of representatives passed a bipartisan resolution to terminate the state of emergency by a vote of 245-182 with 13 republicans joining the democrats. a couple of weeks ago, the senate followed suit, agreeing to terminate the emergency by a vote of 59-21. president trump vetoed the resolution the next day. the first veto of his presidency. while the veto was disappointing, not surprising to many including those in my organization who passed the resolution. i believe it was a remarkable act of defense. in the more than 40 years following the passage of the national emergency act or any a as it is called, presidents have declared emergencies approximately 60 times and renewed emergency declarations. congress has never voted to terminate a state of emergency until number under the original terms of the emergencies act,
the vote alone would have been sufficient to override the declaration however, the supreme court effectively mooted that the provision by finding legislative vetoes unconstitutional and for this reason, in order to terminate an emergency, congress must now attempt to find a very difficult vetoproof majority. as caroline mentioned, this is what we will do in the house tomorrow but nobody is holding their breath. of course, the president may still be checked by the judicial branch and at least 6 lawsuits are making their way through federal courts in california, texas and the district of columbia as we speak. these challenging the border declaration as an abuse of emergency power but the declaration is only the tip of the iceberg and we cannot afford complacency. the brennan center, along with many other groups have been pushing congress to act now to on the nea and restore the balance of power and well the devil is in the details as it always is, we are pleased to
note that bills have already been produced in both houses of congress with bipartisan support for such return reforms. >> as eliza outlined in her testimony at a recent hearing before the house judiciary subcommittee regarding the nea, we have proposed a common sense set of changes. among the proposals, first, congress should specify that a president can only declare a national emergency in the event of a significant change in factual circumstances that poses an imminent threat to public health, safety or other important national interests. second, in the emergency declared by the president should automatically terminate after 30 days unless congress votes to continue it. third, no state of emergency should last longer than 5 years. and finally, congress should provide the power exercised under the declared emergency must be limited to those that would actually address that emergency. these changes would prevent the
milus presented's ability needed for the president to act in crisis while building and safeguards against abuse. the current system lacks basic checks and balances and lends itself to near permanent national emergencies. our researchers have found that the average emergency declaration last 9.6 years and opens up over 120 statutory powers and the fact that these powers have not been more broadly abused by presidents over the years, i think, shows a remarkable amount of restraint by past presidents and no small amount of luck. but as the last few months have shown, we can no longer rely on restraint to protect our constitutional power and we believe you must prevent further abuses. thanks again, kato, american constitution society and all of you for attending today for this really, i think, important
discussion and i look forward to hearing it. thanks. >> thank you all for being here and i'm vice president of kato and i will moderate today's panel discussion. the clichi about the monomers legislative processes the president proposes congress disposes. that used to be where the sentence ended. president trump now proposes to add a codicil unless the president declares a national emergency in which case, he disposes. it is not quite what we, children of the 70s learned in schoolhouse rock so among the questions will be we will be exploring an hour panel are just how unprecedented is that move. will this emergency power s gambit survive legal challenges in the courts? if it does, can we expect more
rule by decree in future budget battles? beyond the immediate issue of the border wall, how big is the problem of emergency powers delegated to the president in general? what, if anything can be done about it? we have a terrific lineup for you featuring 3 accomplished scholars, specializing in the intersection between separation of powers and the rule of law so i'm going to briefly introduce all 3 and then get out of their way. first we will hear from debra bronstein. deborah is a professor of law and codirector of the center for constitutional democracy at cardozo school of law. a leading voice on counterterrorism, she has repeatedly testified before congress on topics ranging from presidential award powers to military commissions and detainee treatment among other notable achievements as
founding director of the law and security program at the milus she served on the first team of independent military commission advisors to visit the naval base at quantum morro bay in 2004 parker work on national security and saturation of powers to the separation of powers is reviewed widely in the press. follow that will be -- who is adjunct scholar. you can imagine how confusing it gets on an email chain trying to iron out the details for an event featuring two ileus, both constitutional lawyers, both with the same last initial. you get sidetracked in debates about which one gets to be called iliah prime.
it is a true story, they boast once showed up at the same event because they both responded to subprime iliah. they had to reduce speaking time and even worse, there are no room. it is not honorarium. for those of you who want to deal with the issue of mistaken identity, iliah wrote a 1500 word blog post entitled " iliah, a guide for the perplexed. was quote in any event, iliah's research focuses on constitutional law, political participation and its implications for constitutional democracy. he is the offer author of democracy and political ignorance and the grasping hand, kilo versus city of new london and the limits of eminent domain and finally, rounding out the opening remarks, adam white is assistant professor of law and
executive director of the seaboard and gray center for the study of the administered of state. adam is a member of the administrative conference of the united states who serves on the leadership council for the administrative law sections of both the american bar association and the federal society and is also a research fellow at the hoover institution . so please welcome them. >> thank you to jean and the cato institute and to caroline and debra at acs. i am delighted to be here and grateful for all of you for coming out on a day when it is conceivably, you could be reading the news. i actually think this is an incredibly important issue and i want to begin, actually i should be beginning by
correcting one thing briefly. in the introduction, i was one of the first independent human rights monitors to go down to guantanamo bay in 2014 when they began military operations. i was on the human rights service when i was a human rights lawyer back many years ago. not in the military service itself, i should say. on the topic of emergency score emergencies or i should say our present emergency. let me say before my remarks, i think i view the particular invocation of the emergency act that we are talking about today, the one that president invoked in february -- i do not believe there is an emergency, that national security believes there is an emergency, that the current department of defense believes there is an emergency. i find it a deeply problematic use of the power. but i think there is a lot of misconceptions about why and what is problematic about it as a matter of law so in these brief remarks i want to step back and try to make really, 3
points. first, the primary legal problem with the president's recent implication of the national emergency act as a statutory problem, not a constitutional problem and i will talk about that more in a minute. the second point i want to make is that the primary problem with the nea is not a presidential power problem. it is a congressional delegation problem. it is a problem not of the president seizing power necessarily but of congress having it away and 3, because i really and determined to end on a note of hope, i think it is entirely possible that congress might actually take steps to fix this problem. that is an exciting prospect that one can't always say in good faith but i hope we can talk about that and you can all tell me why i should have no hope here. let me start with backing up and delving just a little bit into the legal and locations of what the president did in february, just recently and
whether or not one can make a plausible, vis-@-vis successful, but more importantly if what he did violates the constitutional laws of the united states. notwithstanding, the rhetoric, i think on both sides of the aisle on the hill and the lawsuits that were mentioned challenging the trump invocation of the emergency power is a violation of the constitution that most apparently legal problems, if any, in the conduct here surround compliance with the relevant statutes, not the constitution. the nea, as we have just heard, gives the president an enormous amount of power. congress quite deliberately did this and it is still on the books. there is no legal argument in my judgment against its application here that is in the parlance of these be a slamdunk , that is to say, i think there are a bunch of very good arguments that don't comply here and can be understood to
comply here but none is a surefire winner. let me just give you a couple of reasons why i think that. backing up to february, the president issued a declaration and an accompanying fact sheet saying, here is what i am doing. the fact she tells us he is going to access something on the order of 6 or $7 million for constructing a wall on the southern border. half of that money come from existing statutory authorizations that have nothing to do with the national emergency act at all, requires no emergency declaration to access. it remains to this day, as far as i can tell, unclear exactly which statutory pots of money the president is proposing to get that money depending on what he does, various statutory questions of legality may be presented but we cannot answer the legality question yet until we know more specifically about what the president proposes to do. i will come back to that in a second. the remaining 3 point something
billion dollars does require the invocation of the national emergency act. and that is just the key that unlocks other statutory powers, other powers that congress has authorized and the act, with respect to acts of congress authorizing the exercise of a period of a state of emergency, the president is authorized to declare such a state of emergency, period. right? so why is this legally complicated or problematically not clearly illegal? number one, as a matter of suing, right, the current cases that are pending before the court, the fact sheet that the president issued along with the emergency declaration said that the president won't touch the nea relevant funds, relatively half the pot that is being challenged legally most directly until he has expended
the other funds that he has not yet identified. first we are going to spend the money, the 3 billion something dollars that we have not yet said where is going to come from and only once we do that will would be able to tap into the nea relevant funds. if you are stewing, this raises an enormous problem of what was said under article 3. how can you identify the harm much less suing about it if in fact we don't even know which statutory authorities the president plans to invoke. that is one particular hurdle that lawsuits are currently facing. equally, as i mentioned in reading the statutory text, the nea grants the president total discretion to identify an emergency. it does not modify the president's discretion to declare a national emergency in any way. there are a variety of what we
are calling interpretive cannons, canons of statutory interpretation, rules of statutory interpretation that the court can use it they conclude the meaning of a statute is clear. what does it mean in some respect, national emergency within the terms of the statue. the variety of rules the courts employ to help inform their judgment of what that means. one, and i imagine we might talk more about it is the so- called non-delegation canon. this is the idea that congress, because of the separation of powers, cannot simply give all its power away to the other branch. congress cannot simply fully delegates say the budget making power, else, we would no longer have separation of powers. so the court has long said if there is any question about the meaning of the statute, let's prefer the meaning that does not create an excessive delegation preference. that canon is available to the courts here but in fact, the supreme court has not actually held -- since 1935 and more problematically, the court in the national security context, not always and especially not in the years after 9/11 but
refers to executive judgments on what counts as a national security emergency and we saw this acutely in the trump versus hawaii case recently in which the supreme court upheld the third iteration of the travel ban in part on the ground that the president had cited national security arguments for why he needed to do it. the best, therefore, legal challenge that the current invitation is facing is the underlying such tory authority the president is trying to evoke so he declares an emergency and the particular power he is trying to assert is the statute to build the wall. the statute he wants to rely on says, in the event of a declaration of emergency, that requires the use of the armed forces, the secretary of defense may authorize the military department to undertake military construction projects necessary to support such use of the armed forces. there is a lot of language in there that lawyers can and should and i anticipate will
used on the road when the issues become ripe because the president begins to tap into this money. that gives lawyers room to argue this is not a permissible implication of the statue. the words require and necessary imply some sort of objective determination that a court could conclude has not been made and the statute includes the definition of military construction within its terms that is not at all clear it has met by the construction of a wall, certainly not a wall on private land so there are plenty of, i think, which statutory arguments to be made there. i am happy to talk about them in a great more detail but the point is the best argument here is a statutory argument and we are not going to get there for some period of time yet depending on how quickly the president decides he wants to move. so given where i started, this is manifestly pretextual use of emergency authority that the
president is trying to exercise , contrary to congresses, i think, disinterest in funding the wall that the president would like to build. why is this argument not a slamdunk? why is this a complicated long story for why this may or may not be lawful? that leads me to the problem with the existing national emergency act and i think there are a bunch of problems but let me highlight two for present purposes. some white might call the first an excessive delegation problem. summit call it the problem of redundancy. the problem is this. thank you, the problem is this. you have multiple actors, all involved in decision-making, each one knows the other one is involved and so we have an incentive to let the other one
take the real burden of decision and not hold the real burden of accountability. congress is we will authorize this power but we don't have to take official care and how we craft this statue because really the president is going to, in good faith, exercise the determination about how it will be exercise. he will take care of it. equally, the president can say, congress gave me this authority, they must have assumed i would exercise it and so we are not going to worry too much about whether or not it is. i can blame congress for giving me the authority in the first place. both political branches say if we really go too far off the deep end, the courts would step in and check us and as i just mentioned, the courts have did developed a friday of doctrines in this area that tend to suggest that prefer the judgment of the political branches. the problem is no one branch actually can be held legally accountable for what happens when the president invokes emergency authority. the last problem is that china problem and since i'm running out of time, i was a briefly
the following, as was mentioned before in 1983, the supreme court decided when anyone engages in lawmaking it needs to do the way the constitution says, passed by both houses of august and get the president to sign. the bill was originally drafted in 1976. it's a congress could override the residents feature with concurrent resolution. that is, without getting the president of sign it. bypassing the presidential veto that we have just seen invoked. since 1983, congress went back and amended the nea to make a decision with consistent with that decision and all the override does have to pass through the president as we have seen meaning that in effect, yes, now, this creates the or flips the separation of powers on a 10. in effect, it takes a
supermajority of congress to disapprove any presidential invocation of emergency. this is not how it was originally intended to work. i don't think the act should be understood to stand, given this change but for now, it is where it is on the board. last, very brief point. why do i have --? i think it is possible we are living in an era in part with the current president in which congress concluding that it might actually have some important role as the co-legal branch an hour government but usually on questions of national security. not only did it just vote significantly to overturn for the first time in history the presidents declaration of an emergency since 1976. also for the first time, since the act was passed in 1973, voting to and military assistance under the war powers act for saudi operations in yemen, the senate fell a few votes short with republicans
voting to override the ministrations decision about the withdrawal of sanctions on certain russian individuals. to expect, whether or not it had passed preemptive legislation of the ability of the president to send troops into venezuela and we saw the houseboat quite recently, 420-0 to demand the disclosure of the mueller report. i knew i would get it in there somewhere. the point is, we have an interesting president. i think it makes for interesting times and the long- standing separation of power now strikes me as a remarkably fortuitous moment to pursue amending the nea. thanks. >> i would like to start by thanking cato and acs for organizing this event and all
of you for coming. sadly, i have been battling a cold over the last few days but i'm hopeful i will have just enough to get through this event without declaring an emergency and having to stand down. i'm going to start by talking a little bit about the current national emergency declaration by the president and i will explain why it certainly is not a slamdunk but i think this goes beyond what it is permissible even under fairly broad existing framework but i also think there is significant problems with the framework itself and i will end by discussing a few possible reforms. so in february, the president declared a national emergency for the purpose of getting money allocated for his border wall that congress had refused to give him. deborah already gave me the wording of the statute that says that during a period of a national emergency, the president made it clear that emergency and then tap those
emergency powers. the question that should be raised, the first question is, is an emergency anything the president says it is? does his declaring and make it so or is he only allowed to declare it in a situation which counts as a sudden crisis in an emergency in ordinary language, the way we would normally use the word and i think the second interpretation is better for a couple of reasons. one is that in general, the supreme court has said, quite rightly that most of the time, we should interpret the laws in a way in accordance with their ordinary meaning and the ordinate ordinary meaning of an emergency is not whatever i say it is or any problem that might arise or any disagreement that the president may have with congress about funding. it is rather, a sudden crisis, perhaps even a sudden crisis that requires measures that cannot go through the ordinary legislative process such as -- that is a better interpretation.
in addition, if you go the other way, and you just say that president candid can declare an emergency anytime he wants for any reason then you raise a serious constitutional problem in that although the supreme court has been very permissive in letting congress delegate powers to the executive, they said there is a limit and that limit is that there has to be an intelligible principle for when the power might be used, what is it that counts is an intelligible principle, not always easy to say but at the very least, not an intelligible principle if the standard is just, "whenever i feel like doing it" or whenever the president wants to do it. that is not an intelligible principle even under the permissive approach of the supreme court has taken to the matters and the court has also said that, where possible, we should interpret federal laws to avoid constitutional problems . here, the best way to avoid is to require it to be a situation that is a sudden
crisis, not just any problem that might arise in any situation. just briefly, what is going on at the border is not a sudden crisis, undocumented immigration if you consider that to be a problem, is a relatively low level by historical standards. the other issue the president has raised is drug smuggling. most drug smuggling, some 80% actually goes through ports of entry and therefore not be affected by a wall. even if there is a crisis there, it has no relationship to the proposed remedy. finally, if there really were a crisis, it is hard to understand how the wall could possibly be a remedy for it, given that a wall would take several years to build even aside from the legal challenges to it and therefore, it is a bit like saying we have a fire going, we have to really stop
it quickly, what is the memory? we have to build a new fire station so we can stop the fire more effectively. clearly, even if it is a really wonderful, beautiful, excellent new fire station, it is not going to put out this particular fire and therefore, there is a very obvious mismatch between the claim that there is an emergency and the claim that a wall is the solution for the problem. secondly, even if you assume that he can declare an emergency, as deborah pointed out, it is unlikely that section 2808 can actually be used to transfer money to build a wall because section 2808 can only be invoked in situations, and emergencies that require the use of the military and there actually is long-standing federal law barring the use of the military for most domestic law enforcement purposes that include immigration enforcement and also include drug enforcement but i think this statute is unlike the national emergencies act, initial provision, the statute is relatively clear and seems to exclude the sort of thing that trump is trying to do. finally, there is an additional
issue which is that in order to get much of the property that he would need to build the wall, trump would you need to use eminent domain maybe even with respect to thousands of different properties and eminent domain requires specific statutory authorization. i do not think that authorization is present here. i think the issues in more detail in questions, and people interested, this is actually somewhat complicated. i don't think the authorization is quite there. that said, a slamdunk on the first issue of whether it's an emergency or not and for that reason among others, whichever way the litigation goes, i think reforms are desirable. in particular, one important reform is that it's important that the emergency no longer be indefinite. it should automatically terminate in a relatively short period of time unless congress impermissibly endorses it.
the list of reforms, a bill to do this actually was proposed by republican senator mike lee. he and his cosponsors should the emergency and within 30 days, could ask congress to affirmatively force it. something like that i think is desirable. second, some of the powers on the list of those triggered are ones that should be abolished entirely. even if they do have the congressional extension. i can't go through a full list but one example is the power to test chemical and biological weapons on unwilling test subjects. that seems like a power the government shouldn't have. another example is the so- called kill switch for shutting down electronic media including possibly the internet. that is also a dangerous powell
power we shouldn't leave lying around. there are other examples as well. finally, it would be good if it was made clear that an emergency must be a sudden crisis and also that in reviewing whether there really is an emergency or not, judiciary should not be differential to the president when you're invoking extraordinary powers as opposed to ordinary ones, there is a good case for judges to hold the president feet to the fire as opposed to just taking his word for it. as you can see, i'm beginning to lose my voice. but am near the end of my presentation. i will stop and i look forward to the rest of the discussion. thank you. >> [applause] >> we have made a few jokes, inevitable jokes at the onset of today's event of the juxtaposition of today's discussion with last night's news about the robert mueller
report. i think one of our marks here is that you can't understand those two developments in isolation from one another. i think our understanding of the investigation into president trump is a reflection of our understanding of the powers of presidency and by the same token i think the powers of the presidency necessarily turns on the character of the president. that will be the point of my remark. before i get into that i want to thank the cato institute and the american constitution society for law and policy for hosting today's event and inviting me to speak. with the cato institute, american constitution society for law and policy, trying to be a working conservative, it feels like a minority, i'm grateful. i'm very grateful to be here. back to my main point, on this debate about the presidents
emergency powers and the powers of the congress has given the president and the ways in which this president has recently attempted to exercise these powers, i'm worried that we will draw the wrong lesson. i am worried we will conclude the president must not have emergency powers or that it's as good or possible to clearly define emergency powers in advance. i don't think that's possible. i think presidents must have emergency powers and presidents inevitably will have emergency powers. both under statutes and some under the constitution. i think the recent debate, what they do is shed light on the much older lesson about how we select a president and what qualities go into the way we pick a president and how we judge the performance of president. the first point about executive power in our constitutional system, our constitution presumes, necessarily relies upon executive power. and not just sort of the execution of laws but as hamilton famously wrote in
federalist 70, it presumes an energetic executive and if you'll bear with me as i quote the famous lines, if you can't quote them here were can you quote them, hamilton and federal 70 reminds us, energy in the executive is a leading character in the definition of good government. it is essential to the protection of the community against foreign attacks, it is not less essential to the study or ministration of law. deposit and point out, energy in the executive not just in foreign policy but also in the study of administration of laws. necessary for the protection of property against those high- handed combinations which sometimes interrupt the ordinary course of justice. and also to the security of liberties against the enterprises and assaults of ambition, of affection and of anarchy. and justin those last lines he was warning were energy is needed for those interruptions of the ordinary course of justice.
or those assaults which can come either from within government or outside of government, ambition, affection, and of anarchy. that's why we need an energetic executive. hamilton goes on to say "feeble executive implies feeble execution of the government. that is another phrase for bad execution. government ill executed whatever maybe in theory is in practice a bad government." you're going to judge her constitutional system by the administration it produces. especially, or at least in no small part in terms of the execution of laws and the study of the administration of laws and justice at those moments at which the ordinary mechanisms can't easily be relied upon. hamilton less famously returned five years later in his debates with madison he was writing a specific against madison about the writing of the president power or lack thereof to decide the nation's neutrality amidst the wars among england and france.
i won't put as much but hamilton stressed that that debate was an example of the executive in certain cases determining the condition of the nation. because presidents will take action on these spheres but actually affect the ways in which the legislature goes on to act in response. he has a line i have loved, he says the president may create an antecedent state of things. the president can take action and sometimes must take action that is going to shape the terrain on which the legislature later legislates. i think it's important to have a -- hamilton recognizes. these are couple of quotes,, president still just have a constitutional duty to take care of the laws executed. there sworn to faithfully execute the office of the president of the united states, a reminder that the office is not just the execution of laws, it entails more. it entails those things that hamilton was writing about. know if you don't take
hamilton's words, we need to put stock in the lessons of history. this begins early with the early congress for example statutes on tariffs with respect to a relationship with england and france, we understood the england and france were taking actions that impaired or neutral commerce. they wrote statutes that allowed the president to use tariffs, kind of like a light switch. like a toggle between tariff levels with those countries, depending on the presidents conclusion, the presidents opinion or findings that these countries were or were not by letting our neutral commerce. what is neutral commerce? it's not an easy line to draw. was recognized the president would be the one to draw. and i invested him with powers in that. constitutional we have lessons in history. we have seen emergency statutes passed in the intervening years. and the growth that body of legislation mirrors or tracks the growth of our
administrative estate to similar legislative delegations. deborah pointed this out, we're talking about things like the nondelegation doctrine. these, just as much to domestic legislation and domestic regulations as much as they do emergency power and so on. i think these are in many ways deeply intertwined doctrines. in light of that, i think we need to take seriously the fact that congress does to its duties. it does hand off powers to glibly. there's a great line in "war and responsibility" around the first iraq war where he made the point the deborah made earlier, we shouldn't treat this just as the president claiming power that is not his. it's also a problem of congress giving away their powers. congress, see to the ground without a fight, the book he was writing then, the legislative surrender was a self interested one.
accountability is pretty frightening stuff. congress will so often give away his powers to quickly and it's also the people and courts to keep that in line. the challenge in all of this is that we need to be careful, however skeptical we are of delegations and power, we have to be careful in drawing distinctions between glib delegations of legislative power and domestic and foreign policy, but on the other hand, appropriate concessions of discretion to the president to deal with genuine emergencies. what is that, genuine emergency? that's the crux of this debate. so much of this debate defies easy line drawing. precisely because it comes down to terms like a genuine emergency. even in the report we heard discussed today in terms of proposals, so much of it turns on residential judgment as to what the state of affairs are, what the facts are, whether it's a genuine emergency and so
on. so much of this inevitably would wind up in the presidents hand. that's unavoidable. and it's significant. so often talk about the constitution being one that created government for men who aren't angels. that's true. but we can't count on our government to be angelic. but so many other places in the federalist papers, madison and hamilton warned the actually, our system presumes certain virtues. medicine stressed the courts with respect to congress, federalist 55, where he said there's a certain amount of depravity in mankind but that he says, republican government he supposes the existence of other qualities in a higher degree than any other form. a republican government necessarily relies on republican virtues. or so than any other form of government. and i think today as well. hamilton focusing on executive power makes the same points when he is writing about the electoral college and the sorts of people president candidates it would produce. he says it's easy to chuckle at
this now, it will be a constant probability of seeing the station, the presidency filled by characters eminent for ability and virtue. insert laugh here. but the fact is, hamilton was writing that because he said it will be a credit to our constitution, our constitution would be judged by the statesman that it produced precisely because our system relied on the constitution producing good administrations. right? even if hamilton wasn't predicting, he was warning that we needed to look to these virtues precisely because so much of the work of government would rely upon it. he made similar points in federalist 22 talking about the themes that come up in the emoluments clause. the republican government is necessarily sensitive to outside influence or even domestic influence precisely because in republican government our officeholders are taken from the people themselves.
and so are susceptible to so many pressures the common people like all of us are so often susceptible to. so our system really depends on the presidency being filled with men who demonstrate republican virtue. we might survive a period of time without that, but it's true that our system can get along without angela government, not in the long run. i think in the long run it requires more virtue. it requires the voters in us to demand more of that. and we see in our system just looking today, so much discussed already, the weights baked into the system, so much legislative delegation power to the president. and regulatory policy and extradite emergency policy. it presumes the quality of character and a certain amount of restraint and judgment. at the same token the doctrines are of traditional reference that were built at a time and premised upon expectations about what an ordinary administration looks like and how we expected to work.
i think we should demand that of our administration today. just as we demanded of every administration. the challenge to courts wanted to adjudicate these cases in question, i don't pick it so much that the going to get rid of doctrines i think it's going to be the tough work of the court to recalibrate doctrine in recent light of development and factual ground that they understand it. knowing the courts are not well- suited to understand the heart of these presidential determinations. in conclusion, the great irony today then is that our current president is so unconventional, he gleefully defies convention, but he is relying on the conventions that were built upon them. we all rely upon those conventions. and it's that intersection of the unconventional president and the demands of the conventional presidency the make it such a challenging debate. i will leave it at that. thank you very much. >> [applause] >> thanks adam.
thanks to our other panelists. i'm going to open it up for audience questions. for now we have a little time to discuss some of the issues raised in the opening statements. i want to make sure everyone gets a chance to do that. me also put these moderators privilege and put my own on the table for anyone to respond. as ilya shapiro mentioned at the outset, the original constitution is notably stingy when it comes to granting emergency powers to presidents. most of whatever you might describe as an emergency power, most of them are in article 1, power to provide for calling forth the militia, or suspending habeas corpus, early on in the washington administration you had some delegation, congress still getting power to force
militia in certain circumstances. insurrection, involved in requests for states or federal judge. but other than that, the presidents emergency powers are pretty limited. some discussion of his power to repel sudden attacks at the convention. and he also has this power in article 2 section 3 to convene congress on "extraordinary occasions" which might include a national emergency. so my question, does he need more? and if he does, what are the circumstances under which we envision that these limited powers, for which these limited powers are inadequate, a meteor hurling towards the earth, or something else. and to the extent that emergency powers delegated emergency powers are useful, how much of it is, to be
classified in terms of necessary powers in the cases of threats that are really serious? and how much of it, how much of the remainder are just things that are useful like the ability to change requirements for federal contracting in a hurricane or something like that? so to sum up, what emergency powers does -- what could we not do without, what powers does he need, absolutely need to have delegated? anyone? >> i don't think i can give you a complete list but i think i can suggest general principles which is as we were discussing earlier in the panel, it's desirable to constraint it to situations which a, really are sudden crises, and b, can be handled through the ordinary legislative process.
and to the extent that it's necessary to handle those types of situations, there should be time limits on it. which both will enable it to separate out real emergencies from fake ones. and also limit what's posed. i will argue that water conditions make it easier to get legislative authorization for situations that there is a real emergency. the provision for calling a special session of the legislature. in the 18th century, if they weren't already in session, it might take weeks for all of them to get back to washington. today they can get back in less than 24 hours. so there's actually less need for the president to have a long period of time to act before congress can get in on the action than there was an 18th-century. i think that those principles in mind, then talk about particular cases and certainly can be disagreement about borderline situations which may not be like situations at the
border, but maybe borderline situations at the border as well. what i think we should agree on however is the general principles that apply and that can exclude it large number of possible exercises of power even though there will always be some room for disagreement at the margins. >> thanks. i to don't deny for a moment that there may be emergencies that arise in which the president needs to be able to exercise powers that are currently on the books. the one that comes to mind most frequently is the problem of an infectious disease outbreak, whether as a result of natural emerging infectious diseases or biological attack. so there are no questions, emergencies arise. i want to caution, though, about two things. one is as a matter of good
policy, right, and there is a pile of organizations that supports this and makes it clear and in fact, across the government, particularly in the department of homeland security, as we anticipate grappling with natural disasters, terrorist strikes and so forth, the best handling of emergencies comes from whatever the source of the emergency is, a set of responses that has been planned at some level. so whatever the underlying, whether it's a hurricane or terrorist attack or so forth, our government exists with vast apparatuses so you don't have to, the moment something bad happens, because something bad will always happen, just all of a sudden try to reinvent the wheel. have invested a great deal of money and probably should invest more in those systems. and that is the first line of defense for emergencies. it's the kind because we know
emergencies happen and because we handle the better we have planned a little bit for that possibility, they are dealt with in the ordinary, to the extent possible, the ordinary course. we could devote a tiny fraction of money to the federal budget to actually mapping the asteroids in our solar system, tiny amounts of money but we haven't kite got around to it because, later. so part of it is the incentive that democracy has and operates on. the fix that i favor for the national emergency, one of the fixes i pretty girly favor for the national emergency act in addition to many things have been said including eliminating some of the other statutory authorities altogether, i think obviously, is to require some sort of objective, fact-based record on the record
determination or finding by the president or more importantly the relevant administration authority whether it's department of defense or homeland security, whoever it is on the front line of whatever the emergency is. to actually support through factual findings the president to ration of emergency. in other words rather than having a definitional check on the president's power you can declare an emergency if one of the following five things happen, it's a process check on the presidents power. it actually allows for the president to have more flexibility rather than less. but it solves the problem of having a president that does not act in good faith or on the basis of fact. we have seen that kind of process repeatedly in the last couple of years in the lower courts in the ordinary administered of context. lower courts rejected for example the president initial
travel ban, the initial intent to include citizenship on the senses, to defer the childhood arrival revision, you render this policy, you adopted this policy without actually reasoned decision-making or the consultation effect. that is a really powerful check and has proven to be one presidency in an presidency out , i can't imagine why it doesn't exist in this context. >> can i say in response to this question, first of all on the a of the presidents emergency powers and constitution, i think my view of it is there's a lot in initial investing of the executive power which goes beyond the simple enumeration of powers. the first congress in early congress delegated power along these lines to the president. i don't think it's coincidence the first congress is the one most familiar with the failure of articles the federation and the needs of the initial government. they created the first
departments, the first taxes and other laws and they also recognized they needed to delegate a certain amount of discretion to the president. i don't think that's a coincidence. i think our constitutional system has a gravitational pull in that direction. it's hard to define in advance with an emergency. working on an article in financial contexts about risk dealing with systemic financial harm. and very skeptical you can write these things in advance that you can define in advance what emergencies are. you can define in advance so many emergencies, then they wouldn't be emergencies. we would've seen them coming. that's why think it's important to leave as we inevitably will, it in the hands of the president. i am wary of congress interposing itself after the emergency has started. i agree, we need to work as hard as we can in advance to
realistically define policy in advance. i think congress needs to do a better and more creative job of that. recognizing its own limits. it wouldn't be epistemic modesty and trying to predict and legislate in advance. we need to be creative. what worries me is when congress relieves itself of that obligation, we will define the rules for how are going to serve after the emergency happens. i want congress to stay in its lane and define as much of the policy as it can up front. and then concede the reality that when the president, when an emergency does arise the president is going to be in the drivers seat on these things. the presidents are going to have no shortage of discretion in deciding what an emergency is and congress will have to do the hard work of legislating in advance and after-the-fact. but this idea that we are going to set procedural checks like congressional vetoes, that puts the system on its head.
i think we need to separate as much as possible legislation from execution. and things like legislative veto and so on, it's just congress trying to get out of the business of legislation and into the business of constitution. it's a dangerous mistake. >> what role, if any, do any of you see trump's public statements playing in litigation, assuming we get to, you know, when we actually get down to it, president trump has made, jack goldsmith called him guileless in a way. it was a nice way of putting it. he makes public statements that are not designed to help him in future litigation. in this case, you know, he said in january that might threshold
for the clearing a national emergency will be if i can't make a deal with the people who are unreasonable. he said when he was actually getting ready to sign the paperwork on the emergency proclamation, i didn't need to do this, i would just rather do it much faster. what role do you all see those kinds of statements, at least in the lower courts with a travel ban litigation, we have seen, you know, more judicial notice of these foot in mouth statements. do you expect, would you predict that we will see more of that and is that as it should be? >> yes, i think it's inevitable these things will be brought to litigation. and rightfully so. it's one of the reasons the administration shouldn't be so confident, trump versus hawaii which is mentioned earlier. there at least there was some semblance of a fairly clean
record. the court did define the record of the official action and documentation of the executive branch. having the president announce these things in the run-up, 1.5 months lead time of the debate on whether there would be an emergency declaration, was so self-defeating. and then to take the comment that you quoted, at the signing, i think it's going to be impossible to the court to ignore those things. it's good right, you get the courts actually second-guessing the president and the view of the facts when the president himself is second-guessing the view. and not going further trying to second-guess the ordinary course of factual findings in the normal administration and something that looks more like a genuine emergency. >> i think there are several ways this can go. i initial instinct about this was that he would play a lesser
role than the travel ban case. because in the travel ban situation there was and still is outside the immigration context and extensive body of law which says that if you have a motive which is itself unconstitutional like racial, ethnic or in this case religious discrimination that might make an action unconstitutional even if it was permissible for another motive. here, there isn't that kind of body of law knowing the motivation, therefore you should say it may play a lesser role. if this case is decided correctly, there would be no need to go into his motivation and statement, just say what matters is is is an actual emergency, whether or not he thinks it is or is sincere, if it's not then it should be struck down. however, if some sort of doctrine of deference kicks in, then two things might happen. one is courts might realize so far in the past they haven't, that deference is not
appropriate in a situation where the decision was not actually based on any kind of specialized expertise that was based on other kinds of motives where as deborah said, it's pretextual case, although i think this is a powerful consideration, courts in general have not been willing to give a lot of weight, at least not formally. but even if courts aren't going to openly say this matters, it's pretextual or not, i think the fact that it looks pretextual and probably is pretextual may influence judges in a more informal way in that it made other things equal, some judges against the administration's argument. if a judge has a strong view on the validity of the argument one way or another in this kind of thing probably won't make a difference. if the judges otherwise on the fence i think it is possible the judge might be pushed over to rule against the administration because of this
even if when the judge writes the opinion, what is said in the opinion doesn't specifically cite this issue, i think it does affect the atmosphere in which the litigation is conducted. i was gonna say everybody knows, that everyone knows but most people know this is pretextual and that can't, at least in the margin, affect how people perceive it including some judges. >> so the question about how other institutions should respond to an abnormal presidency, or abnormal institutional behavior of any kind, is often difficult. if the president does something extraordinary in not a good way, do the courts or the fbi or congress respond to that extraordinary problem by themselves, behaving in extraordinary ways that is by changing their own institutional norms and habits
that have grown up over sometimes a long time for often good reasons, right, and the reason that is a complicated question is because you worry then normalcy in one institution has a cascade effect across all institutions. i think sometimes that can be a difficult problem. how should the courts react to this extraordinarily unusual presidency? in this particular question, i actually think it's not that hard. in part because i don't think the president should be entitled to deference on questions even in the sort of immigration national security realm unless, there is a demonstration that it is backed up by the expertise that is the justification for judicial deference in the first place. here's a great example of where there is no indication that there is any expert internal, inside the executive branch, other than the president, who thinks that there is an emergency going on. so in this particular case, it
seems to be straightforward for the courts to respond to this by saying, for example, in interpreting the underlying statutes, the military construction statute, this statute uses the word requires the use of the armed forces and the use of the armed forces are necessary, it doesn't say if the president determines the armed forces are required and the president determines it is necessary. there are plenty of statutes that are written like that the delegate to the president a subjective measure of discretion. this particular one is not written in those subjective terms. it's written in objective terms suggesting it's possible to have an external measure of whether in fact this is required or necessary. i think this is actually an easy case for that. but going forward, the biggest concern i have is the movement away in this presidency, but even leading up in sort of the discourse leading up to this
presidency, the movement away from fact-based governance. is a movement that on the one hand seems like a movement away from everything that has grown up in the administrative law over the last 60 or 70 years, but in other respects seemed troubling i can movement away from the enlightenment over centuries. and to me, having institutions respond and push back against that sort of instinct and phenomenon is not institutions behaving strangely. it's institutions behaving normally. >> a related point, talking about difference. last week i was lucky to be here for an event that was organized on chevron difference. between that and this event i feel like i'm becoming the c- span3 seven token defer. messages there's a lot of injury difference. there might be more danger in the lack of deference. our understanding of congress and the court have really been shaped by the actions of this
administration, the previous one and the one before that. with assertions of executive power both in domestic policy and in foreign policy. that's good. it's good those experiences have taught us a lot about congress and the courts. think we shouldn't hold it as a lesson, we should also recognize the both administrations have taught us a lot about the presidency. right? and that we ought to focus on what we learn not just on changing the courts of congress but changing how we think about the presidency is. >> all right, we have a little bit of time for questions. i will ask the defer to me in picking the questioners and going to insist as i always do that they actually be questions. raise your hand, wait for the microphone, state your affiliation if you think it matters and please don't filibuster. make it short and make sure
what you have to say actually ends with a?? >> this fellow over here. >> my question is going to be in the realm of how this might play out before the supreme court. do you think that the nea gives the trump administration reason to argue before the court that they are acting with congressional approval or congressional authorization, especially considering that since like youngstown, the court has used congress's actions and whether or not they are with the presidency or against the presidency to determine the breadth of emergency action? >> so great. this is actually the second time in two weeks i've been able to talk about the case in washington, d.c. i students,
constitutional students are thrilled. case you are talking about, the korean war, the president truman says there is an emergency and it looks like it's going to be a labor strike in the steel mills, there is a war in korea and we need steel for every part of the war effort we undertaking, i'm now in the face of pending labor strike, the supreme court says you can't do that. in particular in a controlling now concurring opinion that the sprinkler continues to cite in white majorities today, says let me tell you how to think about presidential power, presidential power is not fixed but fluctuates, it waxes and wanes depending on what congress has said when congress has delegated the authority to do something the president's power is at its maximum in congress had said no thou shalt not do it, the power is at its lowest and if it's not clear what congress has said we are in the twilight zone. so the
argument here plays out in the following way. the president says, this is a manifestation of power, this is where congress has said, not anything confusing, simply go forth and do this. the only argument on the other side is that this is category three or maybe category two. the congress made clear its view before the president declared an emergency, that we don't want to spend $8 billion to construct a wall on the southern border, right? and that is on the one hand, an important argument. on the other hand, it's not a slamdunk because in fact congress, which it could've done when ultimately passed legislation after the end of the government shutdown, they could've included provision that said and, the president cannot spend any already
appropriated funds for what are other eyes authorized for whatever purpose, on constructing a wall on the southern border. in other words congress could've enacted at that point a thou shalt not prohibit and it didn't. instead, the closest congress has come to know is in the senate failing to bring to the floor the president's budget that included the $8 billion for a wall. that is not exactly the kind of crystal-clear no that one would hope for in a category three case. we are back in the twilight zone. this is what give me hope, if it came to the court, here's where once again it matters what the contemporary imponderables are. unlike in the context from others, here the court has demonstrated a proclivity and indeed interest in simply inquiring, is there an actual emergency, is this border emergency that the president truman or whichever is invoking, and actual one?
the court has been been played there before, the most infamous example, here's an example in which the court may conclude, at worst this is a category two. i still don't know where that necessarily gets you other than back to my statutory interpretation. what does this mean, i'm not sure what it means for this declaration of emergency but maybe it means we should read this underlying statute narrowly. >> so i think the case probably could be resolved without much reference to youngstown framework just by asking, is it an emergency, and even if it is, is he using section 2808 the military construction statute the right way? however there is an interesting similarity between the steel seizure case and the current one which is that in the steel seizure case, congress had set up this half hartley act which
created a mechanism for the president to order people back to work in the steel industry if there was a strike by the mechanism that the taft-hartley act was set up president truman didn't like, that essentially involved breaking a strike by the union. april management way of ending the strike. but the taft-hartley act did not specifically say you can't just seize steel mills and tell them to go back to work on labor's terms rather than management's term. nonetheless invalidated in part because they said if there is a taft-hartley act you can just go around and do the same thing your own way, even if it doesn't specifically ban what you did. similarly here, congress has repeatedly not given trump the amount he wants for a border wall construction and the like, and we have the resolution of disapproval. even though what he has done is not specifically forbidden in
so many words, the pattern of events does have a similarity what happened in the steel seizure case and that should help against trump if the court does decide that we have to get into this framework. i don't think they necessarily need to do so and often the framework raises more questions than answers and this may be one of those times. but if they do get into it, the steel seizure case does suggest that there doesn't have to be an explicit congressional ban for the court to rule it's a category three, namely that you're going against the bill of congress but if that is what happened in the steel seizure case, if that is what happened in the steel seizure case, maybe that's what's true here as well. >> no affiliation.
a couple of quick questions. in terms of an urgent crisis being required under the statute, isn't that belied by the fact that both in text and practice there have been long-term declarations of emergency, number one, and number two, does the intelligible standard requirement for emergency or a generally stated or broadly stated power apply when congress has an override, has reserved the power to override presidential action? >> an interesting question. on the first one as i mentioned my initial presentation, it is indeed a weakness in the statute that the emergency can go on potentially forever. however, to the extent that they can, that makes it all the
more important that there be constraints on the initial declaration of emergency. even once it's declared he can go on for a long time, it has to be a sudden crisis to authorize declaration in the first place. so i don't think there is any inconsistency there. there can be different standards for declaring it in the first place versus later. with respect to the override, the way the override works now it's no different from the fact that anything be the president does unless it's an inherent presidential power can potentially be overridden by new congressional statute as long as the president doesn't veto it or congress overrides the veto, so in the post china world there isn't an override for this as it is for any other exercise because congress can always pass a new law and if the president doesn't veto it, noise potentially constrain him.
matters might be different if we had a law that had the framework that senator lee and others advocate where it automatically ends within 30 days and the like, even then the word emergency has a place where it should be respected. in the current statute where there is no more of an override than there is for anything else, i don't think the override permission should carry a lot of weight. >> yes. >> i'm inclined to think the supreme court would hold that the emergency was properly invoked with the discretion granted by the emergency act. could you speak about the underlying statute, if that's properly invoked, the military construction 2808, could the court then look at cases, if any in the past where that was invoked, the facts of those it was invoked and compare those facts in some way to what the
facts are in this case and somehow distinguish it and say, the emergency act is properly invoked, the president used it correctly, we're not going to look behind his reasoning. , this type of construction for this wall is not within the contemplation of the national emergency act. reliance on the construction act. >> thank you. that's exactly what i think is the most likely grounds for invalidating, if we ever get there, the proposed use of the national emergency act here. so the court could simply say, just not going to opine on the legality of the invocation of the national emergency act as such. what i'm going to say is i'm reading section 2808, first we would need the secretary of defense to actually authorize that, if you had an actual secretary of defense it would be interesting. the military construction, and
a construction carried out with respect to a military installation. a military installation is a base camp, or other activity under the jurisdiction of the secretary of the military department. try using the statute, tilt something on privately owned land. that is one of the examples of the problems that arise you try to actually apply the statute in a way one might contemplate the administration was thinking of applying it. if i were a court, the smallest ruling i could possibly make would be to say, all right, let's not go down the existential road of i don't think there's actually an emergency, let me just exercise, and gauge in a very ordinary exercise of statutory because 28 -- 2808 does not give the president the power to construct on private property under the circumstances. now the one caveat, there will be arguments on the other side,
one of the important arguments on the other side would be to the extent that the statute is unclear or unclear in this particular application, or if they really are just going to use this money to build parts of a wall, that actually do fit within the statute, the president always has in his or her back pocket the argument that the court should defer to the president on the meaning of this particular these particular statutory terms like requirement necessary and so forth. so even if one just focuses on 2808 it's going to be hard to avoid argument altogether, the president lawyers would be silly to ignore the arguments. but if i were a court, it would seem to me the easiest way of addressing the issue. >> the previous uses of that statute are i'm pretty sure bush the elder and bush the younger, the first right after the goal for, i think right when operation desert shield was underway, and the second, this 2808 was invoked after
9/11. and every project, 18 different projects in total that had money diverted to them and all of them with the exception of one were for military facilities abroad. >> in that respect, i think some of the most analogous cases are cases like fda versus brown, and utility regulatory group against the fda. the fda and epa suddenly discovering in long-standing statutes really unprecedented innovative new uses. the court both those cases was skeptical. congress doesn't hide elephants in mouse holes. i think that is the tenor that this court case might take for the court says, the statutes are new. they been used before. we know and we can see what they are made for a not made for. something of this magnitude, really doesn't fit within the
small scope of what the congress had in mind. >> i think here might actually be what we are talking about with the youngstown category three or congress has explicitly forbidden something because the military is forbidden to engage in most types of domestic law enforcement. and the two rationales the administration have put forward here are a, immigration enforcement and b drug enforcement, both domestic law enforcement. not only does this not necessitate the use of military but if the military is used that in itself could be a violation of law and therefore a pretty strong case as opposed to holding military facilities for the goal for or for post-9/11 operations where it pretty clearly is the case that domestic law enforcement is not there. >> we have time for one more. gentlemen in the back. >> thank you.
mentioned the impact of the president statements in the future judicial cases that may be taking place. i wanted to ask you, what do you think his statements impact future legislation? i'm talking about pre-the emergency declaration, there was talk that the president wanted to use the funds from natural disasters to pay for the wall. but he in particular, the president made the statement that maybe you can take it from puerto rico in california, leaving in the same legislation texas and florida money. there was an issue of from one particular party to another. i'm thinking in terms of the new emergence taking place with the floods in the middle of the country do you think it will be
special language to prevent the president from having so much discretion to use the funds for a particular set of states as opposed to other set of states? thank you. >> there are a lot of things, let me take that in two different context. i am familiar with the statements the president mentioned. as a general matter, as a matter of existing statute, the president cannot use money that has been appropriated for one thing for something else. and there are in fact criminal entities attached to doing that. so that is part of why anticipate, part of why anticipate, it taking so long for the administration to tell congress, where it gets the money for the first half of the funds, the nonemergency act
half of the funds it identified or purported to identify its initial declaration. the more closely i looked at the initial declaration statements, the more i came to the conclusion that has no intended actual policy effect. this is intended to have -- reopen the government with some political cover in fact primarily. so i'm not worried about that now but it would depend on the particular language of the statute that has appropriated the emergency funds. with respect to the broader part of this question that we talked about earlier with respect to how much the president's words matter, in court, a colleague of mine wrote a terrific article last year about presidential speech and what effect it has, if any,
what do the courts make of it. not just respect to this president but what kind of evidentiary value in any context to the president's words have? and the short answer was, the courts haven't addressed this in any systematic way. surprisingly, i don't know that we've had a president like this before, i know we have not had a president like this before. so we are beginning to see that. but one of the suggestions was that when the president's words reflect some considered judgment, like are part of a finding required by statutes, reflecting an administrative determination that the branch is made, or some impermissible or unconstitutional motive, one might have imagined the president's words in that travel ban did, as one might imagine depending on what else the president says about rico emergency fund, one might imagine, might be a parent there, then it's permissible
and indeed necessary for the courts to take account of the president's words as evidence of the president motive permissible or otherwise. >> thank you all for an enlightening discussion. you can join us upstairs in the winter garden for lunch. on the first floor. thank you. >> [applause] >> c-span's washington journal, live every day with news and policy issues that impact you. coming up wednesday morning, peter welch discusses william bars summary of special counsel robert mueller's final report. also, galen institute president talks about healthcare in the future of the affordable care act. also todd unger on how states
and localities are spending $1 million in federal safety funds to protect schools for mass shootings. be sure to watch c-span's washington journal wednesday morning. joined the discussion. >> here are some of our live coverage wednesday. the house meets at 10 am and returns to legislative work at noon eastern to debate the paycheck fairness act that aims to close the salary gap for women and minorities. lawmakers are also considering a nonbinding resolution opposing president trump's ban on transgender members of the armed forces. watch the house on c-span. on c-span2 the senate considers whether to officially consider debate on emergency disaster spending. in the morning on c-span3 members of the house armed services committee here for military commanders on national security challenges in the indo pacific region. at 12:30 pm secretary of state mike pompeo testifies about us foreign policy strategy and the
2020 budget proposal for the state department. >> this weekend coverage of the virginia festival of the book from charlottesville. with author discussions on music and social movement, race, politics and crime in america. starting saturday at 1 pm eastern with the book maybe forever stand. a history of the black national anthem. biographers on frederick douglass discussing arthur ashe. author melanie hatter. and the book freedom fighters and held razors. charles marsh with can i get a witness. and authors lori anderson with shout and jason reynolds with his book, long way down. watch coverage of the virginia festival of the book saturday at 1 pm eastern on book tv on c- span2.
>> now a discussion on the u.s. postal service and e-commerce. topics include the increasing rate of business conducted online. the impact on the postal service. revenues associated with packaged delivery services. and competition. the information technology and innovation foundation hosted the event. it is one hour 20 minutes. >> good afternoon everyone. and president of the information technology and innovation foundation. and i am really pleased to welcome you today to i tif's event on be