[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]


                  THE NATIONAL EMERGENCIES ACT OF 1976

=======================================================================

                                HEARING

                               BEFORE THE
                               
                          SUBCOMMITTEE ON THE
            CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED SIXTEENTH CONGRESS

                             FIRST SESSION

                               __________

                           FEBRUARY 28, 2019

                               __________

                            Serial No. 116-5

                               __________

         Printed for the use of the Committee on the Judiciary

[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

        Available http://judiciary.house.gov or www.govinfo.gov                      
                    
             
                               __________
                               

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
37-840                       WASHINGTON : 2019                     
          
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                       COMMITTEE ON THE JUDICIARY

                   JERROLD NADLER, New York, Chairman
ZOE LOFGREN, California              DOUG COLLINS, Georgia,
SHEILA JACKSON LEE, Texas              Ranking Member
STEVE COHEN, Tennessee               F. JAMES SENSENBRENNER, Jr., 
HENRY C. ``HANK'' JOHNSON, Jr.,          Wisconsin
    Georgia                          STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida          LOUIE GOHMERT, Texas
KAREN BASS, California               JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana        KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York         JOHN RATCLIFFE, Texas
DAVID N. CICILLINE, Rhode Island     MARTHA ROBY, Alabama
ERIC SWALWELL, California            MATT GAETZ, Florida
TED LIEU, California                 MIKE JOHNSON, Louisiana
JAMIE RASKIN, Maryland               ANDY BIGGS, Arizona
PRAMILA JAYAPAL, Washington          TOM McCLINTOCK, California
VAL BUTLER DEMINGS, Florida          DEBBIE LESKO, Arizona
J. LUIS CORREA, California           GUY RESCHENTHALER, Pennsylvania
MARY GAY SCANLON, Pennsylvania,      BEN CLINE, Virginia
  Vice-Chair                         KELLY ARMSTRONG, North Dakota
SYLVIA R. GARCIA, Texas              W. GREGORY STEUBE, Florida
JOE NEGUSE, Colorado
LUCY McBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas

        Perry Apelbaum, Majority Staff Director & Chief Counsel
                Brendan Belair, Minority Staff Director
                                 ------                                

  SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

                     STEVE COHEN, Tennessee, Chair
JAMIE RASKIN, Maryland               MIKE JOHNSON, Louisiana,
ERIC SWALWELL, California              Ranking Member
MARY GAY SCANLON, Pennsylvania       LOUIE GOHMERT, Texas
MADELEINE DEAN, Pennsylvania         JIM JORDAN, Ohio
SYLVIA R. GARCIA, Texas              GUY RESCHENTHALER, Pennsylvania
VERONICA ESCOBAR, Texas              BEN CLINE, Virginia
SHEILA JACKSON LEE, Texas            KELLY ARMSTRONG, North Dakota

                       James Park, Chief Counsel
                     Paul Taylor, Minority Counsel
                            
                            
                            
                            
                            C O N T E N T S

                              ----------                              

                           FEBRUARY 28, 2019

                           OPENING STATEMENTS

                                                                   Page
The Honorable Steve Cohen, Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1
The Honorable Mike Johnson, Ranking Member, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     4
The Honorable Jerrold Nadler, Chairman, Committee on the 
  Judiciary......................................................     6

                               WITNESSES

Elizabeth Goitein, Co-Director, Liberty & National Security 
  Program, Brennan Center for Justice
    Oral Testimony...............................................    10
    Prepared Testimony...........................................    12
Nayda Alvarez, Landowner and Resident of La Rosita, Texas
    Oral Testimony...............................................    30
    Prepared Testimony...........................................    32
Jonathan Turley, J.B. and Maurice C. Shapiro, Professor of Public 
  Interest Law, George Washington University Law School
    Oral Testimony...............................................    35
    Prepared Testimony...........................................    37
Stuart Gerson, Member, Epstein Becker Green
    Oral Testimony...............................................    55
    Prepared Testimony...........................................    57

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Item for the record submitted by the Honorable Veronica Escobar, 
  Subcommittee on the Constitution, Civil Rights, and Civil 
  Liberties......................................................    85
Items for the record submitted by the Honorable Madeleine Dean, 
  Subcommittee on the Constitution, Civil Rights, and Civil 
  Liberties......................................................    90
Items for the record submitted by the Honorable Steve Cohen, 
  Chairman, Subcommittee on the Constitution, Civil Rights, and 
  Civil Liberties................................................   106

 
                  THE NATIONAL EMERGENCIES ACT OF 1976

                              ----------                              


                       FRIDAY, FEBRUARY 28, 2019

                        House of Representatives

            Subcommittee on the Constitution, Civil Rights, 
                          and Civil Liberties

                       Committee on the Judiciary

                            Washington, DC.

    The subcommittee met, pursuant to call, at 12:21 p.m., in 
Room 2141, Rayburn House Office Building, Hon. Steve Cohen 
[chairman of the subcommittee] presiding.
    Present: Representatives Cohen, Nadler, Raskin, Scanlon, 
Dean, Garcia, Escobar, Jackson Lee, Johnson, Gohmert, Jordan, 
Armstrong, Reschenthaler, and Cline.
    Staff Present: James Park, Chief Counsel, Constitution 
Subcommittee; Susan Jensen, Chief Parliamentarian; David 
Greengrass, Deputy Chief Counsel; Matt Weisman, Legislative 
Director; Patrick Bond, Legislative Assistant; Jacqueline 
Sanchez, Legislative Assistant; Robin Chand, Legislative 
Assistant; Armita Pedramrazi, Legislative Assistant; Colin 
Milon, Legislative Assistant; Devon Ombres, Legislative 
Assistant, Alex Lipow, Legislative Aide; Will Emmons, 
Professional Staff Member; Madeline Strasser, Chief Clerk; 
Julian Gerson, Staff Assistant; Brendan Belair, Minority Staff 
Director; Bobby Parmiter, Minority Deputy Staff Director; Jon 
Ferro, Minority Parliamentarian; Paul Taylor, Minority Chief 
Counsel, Constitution Subcommittee; and Andrea Woodard, 
Minority Professional Staff Member.
    Mr. Cohen. It is good to have the gavel. The Committee on 
the Judiciary Subcommittee on the Constitution, Civil Rights 
and Civil Liberties, which is the name it had when the 
Democrats were in the majority, and it is the Democrats name 
once again, and forever after, so it shall be, will come to 
order. Without objection, the chair is authorized to declare 
recesses of the subcommittee at any time.
    Welcome to everyone to today's hearing on the National 
Emergencies Act of 1976. I will now recognize myself for an 
opening statement.
    I am pleased today to convene the first hearing of this 
Subcommittee on the Constitution, Civil Rights, and Civil 
Liberties, for the 116th Congress. I look forward to working 
with Ranking Member Mike Johnson, and other members of the 
subcommittee on the many challenging and pressing issues that 
we will be addressing in the months to come.
    It is fitting that our first hearing here will focus on the 
National Emergencies Act of 1976, and its implications for one 
of the core tenets of the Constitution's design, a governmental 
structure defined by checks and balances and the separation of 
powers, all from the brilliance of James Madison.
    The primary function of the Constitution, besides the 
Congress, under Article 1, is the power to legislate, including 
the power to appropriate funds. As every grade school student, 
high school student, law student, is taught, Congress writes 
the laws, while the President's job is to enforce them.
    We are also taught that Congress has the power of the 
purse. If the President wants to spend money for something, he 
or she needs to get funding from the legislative branch. That 
is Article 1. Unfortunately, President Trump has undermined 
those basic principles. After making a campaign pledge to build 
a wall along our southern border, 2,000 miles long, and then 
promising that Mexico would pay for it--which was simply a 
device that his campaign folks gave him to remember to bring up 
the issue, and later, it morphed into a policy design--he was 
met with a dose of reality. That was that Mexico was not going 
to pay for it, and that neither was Congress.
    Polls show that the American people do not want to pay 
billions of dollars for a vanity project when illegal 
immigration is historic lows, when a wall would do nothing to 
stop drugs being smuggled into our country, which come through 
our ports of entry by about a 90 percent amount, and when 
families fleeing violence need an orderly and humane system to 
process asylum claims, not a concrete wall.
    And there aren't women being duct taped over their mouths, 
legs immobilized, sex trafficked into our country. That is pure 
fantasy.
    That is why earlier this year, Congress rejected the 
President's request for $5.7 billion to build a border wall. In 
fact, President Trump did not even seriously pursue those 
billions of dollars during his first 2 years in office, when 
his party controlled both Houses of Congress. But the President 
doesn't not like getting his way. That is why 2 weeks ago, in a 
petulant action, he invented a so-called emergency to order--to 
divert billions of dollars in military construction funds to 
build his wall.
    As Elizabeth Goitein--right?
    Ms. Goitein. Very close, Goitein.
    Mr. Cohen. You got it--one of our witnesses, will explain, 
this is the only time since the passage of the National 
Emergencies Act, that a President has invoked emergency powers 
to thwart the express will of Congress.
    President Trump's actions undermine the basic separation of 
powers. It is not up to him to circumvent the funding 
directives that Congress has passed into law using its 
exclusive power of the purse. And it certainly is not up to him 
to use American taxpayer money to seize land from owners of 
private property for a project that Congress has not authorized 
him to build. The Supreme Court noted that when Harry Truman 
tried to take over the steel industries during the Korean War--
and that was during a war--that he could not do it. It was 
illegal use of that power.
    Congress, as a co-equal branch, cannot be silent in the 
face of this power-grab. I was pleased with the House vote, 245 
to 182, on Tuesday to pass a joint resolution to terminate this 
so-called emergency. And I hope my colleagues in the Senate put 
constitutional principles above party loyalty and Presidential 
fealty when they take a vote on this measure in the coming 
weeks.
    While I believe President Trump's emergency declaration is 
legally and substantively without merit, it also raises a 
number of broader questions about the National Emergencies Act 
and Congress's delegation of emergency authority. That is why 
it is important, even though we have had this vote, to have 
this hearing, because we need to see what is this act and does 
it need to be amended?
    The National Emergencies Act was enacted in 1976, in order 
to constrain the use of Presidential emergency authorities. It 
does not give the President any particular powers, but it sets 
forth the process that he has to follow if he declares an 
emergency, and the process that we in Congress have to follow 
if we want that emergency to end.
    The law hasn't worked as intended. President Trump and his 
supporters believe that because the NEA, a law setting out a 
procedural framework only, does not define what an emergency 
is, then the President is free to invent one whenever he 
wishes, a la King George. If we accept that view, then not even 
common sense, or an English dictionary, or the Constitution 
which we swear to uphold, can act as a constraint.
    As to the underlying laws that give the President emergency 
authorities, a lot of scholars and commentators have pointed 
out that we, in Congress, have almost lost track of how many 
authorities we have granted to the President, or whether these 
grants of emergency authorities remain warranted. Ms.--you are 
on----
    Ms. Goitein. Goitein.
    Mr. Cohen [continuing]. Goitein will describe some of those 
laws for us, many of which have never been used. Nonetheless, 
they remain on the books, and as Justice Robert Jackson put it 
in a famous dissent on a different emergency claim, they, 
quote, ``lie about a loaded weapon''--``about like a loaded 
weapon,'' unquote.
    Tellingly, after President Trump began talking in late 2018 
about declaring a national emergency, a lot of lawyers and 
scholars spent weeks spinning their wheels, trying to figure 
out which laws he was talking about. The President's own Budget 
Director told the press about how he and his staff combed 
through the U.S. Code, looking for hidden emergency authorities 
or other loopholes that allow them to move money around.
    The American people deserve better than that. They deserve 
to know the President cannot rewrite the law or exploit obscure 
loopholes to raid funds that have been allocated by Congress 
for different purposes, and particularly, when Congress has 
acted at the President's request. The President was going to 
accept what Congress gave him and then said no after he heard 
from talk show radio hosts.
    Then he shut down the government after Congress wouldn't 
give him his funds. And then after 3 weeks, Congress voted 
together, in a bipartisan fashion, to give him what funds they 
thought were appropriate, and then he declared a national 
emergency. He basically declared Congress null and void.
    So I look forward today to hearing from all of our 
witnesses who bring a range of perspectives about these issues. 
I hope we can have a productive and fruitful discussion, not 
only about President Trump's actions, but about whether we, as 
Congress, need to do more to constrain these type of 
authorities and amend this law, so they are used only in true 
emergencies and not as an end-run around our Constitution.
    I now recognize the distinguished ranking member, Mr. 
Johnson, from the ``Go Tigers'' State, for his opening 
statement.
    Mr. Johnson. Thank you, Mr. Chairman. I appreciate you and 
all of our colleagues and look forward to working with you all 
on the subcommittee this year. And thank you to our witnesses 
for being here with us.
    Today's hearing on the National Emergencies Act of 1976 
takes place at a time in history in which Congress has 
increasingly abdicated its legislative powers, over many 
decades. It is like having a hearing on puddles right now in 
the middle of a hurricane. That is my Louisiana reference for 
you.
    I would like to use my time today to take a step back and 
explore how the polarization of Congress seems to have drawn 
both parties, at times, further away from our constitutional 
core, and namely that is, what has been referenced, Article 1 
of the Constitution.
    As a former historian of the House of Representatives, 
Robert Remini, has written, quote, ``The Framers of the 
Constitution were absolutely committed to the belief that a 
representative body, accountable to its constituents, was the 
surest means of protecting liberty and individual rights. So 
anxious were they to affirm legislative supremacy in the new 
government, that they failed to flesh out the executive and 
judicial departments in the Constitution, leaving that task to 
Congress, and thereby assuring that the legislative and the 
legislature would remain control of the structure and authority 
of both of those branches,'' unquote.
    But today, the separation of powers, so carefully designed 
by the Framers of our Constitution, has been greatly obscured.
    Let's take a look at more recent history. Just consider the 
last 5 years. The first section of the first Article of the 
Constitution provides that, quote, ``All legislative powers 
herein granted shall be vested in a Congress of the United 
States,'' unquote. And then the ObamaCare statute, Congress 
provided for clear statutory guidelines for compliance, 
including this one regarding the mandates the statute imposes 
on employers. Quote, ``The amendments made by this section 
shall apply to months beginning after December 31, 2013. Yet, 
the Obama administration unilaterally sought to rewrite the 
law, not by working with the people's duly elected 
representatives, but through things like blog posts, where they 
removed penalties for employers who could--who would otherwise 
be required to provide insurance coverage for their employees.
    They did it through regulatory fact sheets, which created 
an entirely new category of businesses and exempted them from 
their responsibility under the law. They used things like 
letters, which specifically explain that people would have to 
have their health insurance terminated under ObamaCare, of 
course, in violation of President Obama's famous promise that 
if you like your healthcare plan, you can keep it.
    And then they claimed to suspend the law's insurance 
requirements to a date uncertain. This--this one letter alone 
referenced there, suspended the application of eight key 
provisions of the ObamaCare law. And why was this done? To 
delay the terrible consequences of ObamaCare until after the 
next election cycle.
    The Obama administration also admitted to using Federal 
taxpayer money to pay subsidies to insurance companies under 
Section 1402 of the Affordable Care Act, even though 
appropriation for such payments were never made by Congress, in 
violation of Article 1, Section 9, Clause 7 of the 
Constitution, which expressly states, quote, ``No money shall 
be drawn from the Treasury but in consequence of appropriations 
made by law,'' unquote.
    When it submitted its fiscal year 2014 budget to Congress, 
the Obama administration correctly recognized it could not make 
Section 1402 offset program payments to insurers unless and 
until Congress specifically appropriated funds for that 
purpose.
    In July 2013, the Senate Appropriations Committee declined 
to approve the administration's request. In fact, neither the 
House, nor the Senate, ever adopted a bill approving the 
administration's request, and no bill containing an 
appropriation to fund that section was presented to the 
President for his signature or veto.
    Congress also didn't appropriate funds for Section 1402 for 
fiscal year 2015, and yet, the administration went ahead and 
funded the insurance subsidy program anyway. Notwithstanding 
the lack of any appropriation for that section, either in 
ObamaCare, in that law, or in fiscal year 2014 appropriations 
bill, the Obama administration unilaterally began making such 
payments to insurers in January 2014 and continued making them 
thereafter.
    One of the witnesses here today, Professor Jonathan Turley, 
challenged the rank unconstitutionality of those unilateral 
executive actions on behalf of the House of Representatives, 
and it led to a Federal District Court ruling that said, quote, 
Neither the President, nor his officers, can authorize 
appropriations. The assent of the House of Representatives is 
required before any public moneys are spent. Congress's power 
of the purse is the ultimate check on the otherwise unbounded 
power of the executive.
    The genius of our Framers was to limit the executive's 
power by a valid reservation of congressional control over 
funds in the Treasury. Disregard for that reservation works a 
grievous harm on the House which is deprived of its rightful 
and necessary place under the Constitution.
    Judge Collier ultimately ruled in favor of the House on May 
12, 2016, and found that the Obama administration violated the 
Constitution in committing billions of dollars from the U.S. 
Treasury without the approval of Congress.
    The Trump administration subsequently ended that 
unconstitutional funding program. Then November 2014, President 
Obama unilaterally and unconstitutionally created a program 
that would suspend immigration laws for millions of people who 
are in this country illegally without authorization by 
Congress.
    The President urged Congress to enact a statute to create 
such a program under law, but Congress did not, even when his 
party controlled both Houses of Congress. And despite claiming 
the situation was urgent, he didn't act unilaterally until 
November 2014. Whether or not the President delayed action 
until November 2014 for political reasons, he knew the actions 
he ultimately did take were unconstitutional.
    And we know that from his many public statements in which 
he himself directly addressed the issue of the lack of legal 
and constitutional authority to do what he ultimately did, that 
he recognized it as well. He said, in his own words at one 
point, he changed the law.
    Now, all that happened without any protest from the other 
side of the aisle, even though both sides of the aisle work 
together here under the same Capitol dome, and we share the 
same legislative powers under Article 1. But today, here we are 
having a hearing on President Trump's exercise of clearly 
delegated authority under a statute that was duly enacted by 
Congress. We can debate the policy merits of the authorizing 
statute, but there is no doubt the National Emergencies Act of 
1976, and related Federal statutes, constitute a clear 
delegation by Congress of parts of its appropriation powers to 
the President, subject to the President's declaration of a 
national emergency, which is a term that is left to the 
President alone to define.
    There is a crisis at the border, and everyone at some point 
or another has acknowledged that. And the President has the 
authority to address that crisis under a Federal statute that 
is duly enacted by Congress. I would just say this in closing. 
It is time to drop the politics and pick up our principles.
    We, in Congress, must rediscover the principle basis for 
our Article 1 powers. Until we do that, we will move in 
partisan fits and starts, one day in this direction, next day 
in that direction, and we will discover one day that we are not 
moving forward, but rather in circles, down a whirlpool that 
erodes our legislative powers, spinning with increasing speed 
in smaller and smaller circles.
    I hope this hearing can help right our ship, and help 
provide us a principled anchor as Congress moves ahead. I look 
forward to hearing from all of our witnesses here today, and I 
yield back.
    Mr. Cohen. I thank the gentleman from Louisiana for his 
statement, and I now recognize the chairman of the full 
committee, the Honorable Jerrold Nadler of New York for his 
opening statement.
    Chairman Nadler. Thank you, Mr. Chairman, and thank you for 
convening this hearing on this important topic. I would also 
like to thank all of the witnesses for appearing here today.
    I am heartened by the fact that their opposition to 
President Donald Trump's emergency declaration comes from 
across the political spectrum, because ultimately, this debate 
should not be about partisan politics. It should be about 
protecting a principle that is fundamental to our 
constitutional democracy. Namely, that the Chief Executive 
cannot unilaterally spend taxpayers' money or redirect funds 
appropriated by the people's representatives.
    Article 1, Section 9 of the Constitution makes it 
unmistakably clear that, quote, ``No money shall be drawn from 
the Treasury, but in consequences of appropriations made by 
law,'' closed quote. President Trump violated that basic 
command when he invented a so-called emergency as an excuse to 
build a wall that Congress explicitly rejected. The only 
emergency is the fact that Congress refused the President what 
he wanted. That kind of bad-faith action by the President is a 
violation of his oath of office to defend the Constitution, and 
to faithfully execute the law.
    In addition, the emergency law that President Trump invoked 
allows the military to redirect funds only if an emergency, 
quote, ``requires used of the armed forces,'' closed quote. And 
those funds can be used only for construction projects that 
are, quote, ``necessary to support such use of the armed 
forces,'' closed quote. This law is supposed to be for action 
such as building airfields or barracks to help our troops fight 
wars overseas.
    A war, however, cannot possibly be, quote, ``necessary to 
support,'' unquote, a military operation on the border, because 
the Posse Comitatus Act and related laws expressly prohibit the 
military from engaging in law enforcement activities. The 
military, therefore, cannot enforce our immigration laws or our 
drug-smuggling laws. That means the President's actions are 
doubly unlawful.
    There is no real emergency, and even if there were one, the 
President could not redirect military funds for a purpose 
expressly prohibited by law to the military.
    This past Tuesday, the House passed a joint resolution to 
terminate this so-called emergency. That was an important first 
step in reasserting Congress' role as a check against President 
Trump's unlimited appetite for power. And I hope that my 
colleagues in the Senate, particularly those on the other side 
of the aisle, will take a hard look at the bigger principles at 
stake, including their own role in our constitutional system, 
when they go to cast their votes.
    And let me paraphrase, I think it was Senator Rubio, if 
today, the so-called emergency is--is at the border, tomorrow 
the emergency could be climate change or guns. We actually have 
a gun emergency in this country. What would you say if the 
President declared an emergency and said, we are going to 
collect all the guns in the country and melt them down the way 
they did in Australia? I would say that was unconstitutional.
    But the people who uphold this emergency use of the--this 
emergency power now would have to say, to be consistent, that 
that was a proper use of the President's emergency power. No 
President should have that kind of unlimited power. That is 
what is at stake here.
    But this hearing is about more than debating the legality 
or the merits of the President's February 15th emergency 
declaration. His decision to invoke the so-called emergency 
authority should give all of us great pause. Because those 
authorities go beyond the ability to redirect funds in order to 
build a wall.
    The National Emergencies Act, which regulates the process 
by which the President can declare an emergency, was enacted by 
Congress in 1976, in order to curtail certain abuses of the 
emergency authorities that had come before. The Act provides a 
general framework through which the President can declare 
national emergencies, and through which Congress can review and 
terminate them.
    Importantly, at the time the law was enacted, it allowed 
Congress to terminate any emergency by a majority vote in both 
Houses. But in 1983, the Supreme Court held that Congress 
cannot veto actions taken by the executive branch, through 
majority votes in the House and Senate. Instead, if Congress 
wants to override the President's actions, it has to pass a new 
law, which means it has to get the President's signature or 
pass the law with veto-proof majorities.
    Consequently, in 1985, Congress amended the National 
Emergencies Act to be consistent with that ruling. 
Unfortunately, in doing so, Congress abdicated a substantial 
amount of its constitutional power to constrain the President. 
The bottom line now is that if the President declares an 
emergency and we in Congress do not like it, we either have to 
convince the President to sign a joint resolution to terminate 
his own emergency declaration, an unlikely occurrence, or we 
need a veto proof majority, which is very difficult to muster.
    As to President Trump's bogus emergency, I think on 
principle that every Member of the House and Senate should vote 
to terminate it. The administration can scarcely tell you with 
a straight face that there is an emergency on the southern 
border. Take the partisan politics away, and this would not be 
a close call.
    But whether we are addressing this so-called emergency or 
some future emergency declared by some other President, it 
should not take a super majority of Congress to stop the 
President from abusing power that has been delegated to address 
urgent circumstances.
    As Elizabeth Goitein will describe, there are numerous 
emergency statutes that give the President a broad range of 
potential authorities, including the ability to bar certain 
exports or even potentially to take control of communications 
networks. All of which could be subject to abuse by a President 
who does not respect the rule of law.
    We may agree that the President should be allowed some 
types of discretion during true emergencies, but an emergency 
cannot continue forever. So to shift the burden of inertia, we 
should consider legislation that would set a time limit for 
emergency--for emergency, requiring that they automatically 
expire after a short period, say, 10 days, unless Congress 
ratifies the emergency declaration by law. This type of sunset 
provision--and I emphasize, it should be in the days, not the 
weeks--would restore the authority and the responsibility to 
change the law to where it belongs, in Congress.
    We should also consider separating out which so-called 
emergency statutes are designed for true emergencies, and which 
ones use that term to describe other contingencies that may 
call for particular responses within the executive branch, but 
which do not involve truly urgent circumstances.
    I recognize we will not solve all these issues today, but I 
am eager to begin this important dialogue. I thank the 
witnesses for their participation. I look forward to their 
testimony. I yield back the balance of my time.
    Mr. Cohen. Thank you, Mr. Nadler.
    I am going to introduce the witnesses, but I like to 
introduce them individually before they speak, rather than as a 
group. So I will--first, I think before we introduce Ms. 
Goitein, we are going to ask all of the witnesses to stand and 
be sworn as has become a custom in our committees.
    Do you swear or affirm under penalty of perjury that the 
testimony you are about to give is true and correct to the best 
of your knowledge, information, and belief?
    The Witnesses. I do.
    Mr. Cohen. Great. Thank you. Let the record show the 
witnesses----
    Mr. Johnson. Point of parliamentary inquiry.
    Mr. Cohen. Yes, Mr. Johnson?
    Mr. Johnson. I think we left out the phrase ``so help me 
God.''
    Mr. Cohen. We did.
    Mr. Johnson. Could we have the witnesses do it again for 
the record?
    Mr. Gerson. I accept the amendment.
    Mr. Cohen. Yeah, they want to do it, but some of them don't 
want to do it. And I don't think it is necessary, and I don't 
like to assert my will over other people.
    Mr. Johnson. Well, it goes back to our founding history. It 
is been part of our tradition for more than 2 centuries, and I 
don't know that we could abandon it now. Could I ask the 
witnesses if they would--if they would choose to use the 
phrase?
    Chairman Nadler. Mr. Chairman.
    Mr. Cohen. Mr. Nadler.
    Chairman Nadler. If any witness objects, he should not be 
asked to identify himself. We do not have religious tests for 
office or for anything else, and we should let it go at that.

   TESTIMONIES OF: ELIZABETH GOITEIN, CO-DIRECTOR, LIBERTY & 
    NATIONAL SECURITY PROGRAM, BRENNAN CENTER FOR JUSTICE, 
  WASHINGTON, D.C.; NAYDA ALVAREZ, LANDOWNER AND RESIDENT OF 
 LEGISLATIVE ASSISTANT, ROSITA, TEXAS; STUART GERSON, MEMBER, 
 EPSTEIN BECKER GREEN, WASHINGTON, D.C.; JONATHAN TURLEY, J.B. 
AND MAURICE C. SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW, GEORGE 
       WASHINGTON UNIVERSITY LAW SCHOOL, WASHINGTON, D.C.

    Mr. Cohen. We will proceed, introduce the first witness.
    Mr. Johnson. Glad it is noted for the record.
    Mr. Cohen. Ms. Elizabeth Goitein is a codirector of the 
Brennan Center for Justices, Liberty, and National Security 
program. She is the author of numerous articles and reports 
regarding national security and civil liberties. She is also 
the author of an extensive piece in the January/February issue 
of The Atlantic, titled, What the President Could Do If He 
Declares a State of Emergency.
    Before coming to the Brennan Center, Ms. Goitein served as 
counsel to Senator Russ Feingold, then the chairman of the 
Constitution Subcommittee of the Senate Judiciary Committee, 
and as a trial attorney in the Federal programs branch of the 
civil division of the Department of Justice. Ms. Goitein 
received her J.D. from Yale Law School and clerked for the 
Honorable Michael Daly Hawkins on the U.S. Court of Appeals for 
the Ninth Circuit.
    She received her B.A. in history from Yale and a Masters of 
Music degree in oboe performance from the Julliard School. 
Welcome, and we would like to hear your testimony, and you have 
5 minutes to give us.

                 TESTIMONY OF ELIZABETH GOITEIN

    Ms. Goitein. Chairman Cohen, Ranking Member Johnson, and 
members of the committee, thank you for this opportunity to 
testify on behalf of the Brennan Center for Justice.
    President Trump's declaration of a national emergency to 
build a wall along the southern border is an unprecedented 
abuse of emergency powers. The President declared this 
emergency for the stated purpose of getting around Congress, 
which had repeatedly refused his request for funding to build 
the wall. No other President has used emergency powers in that 
way.
    Emergency powers are not meant as an end-run around 
Congress. They are simply standby authorities that Congress has 
passed in advance, recognizing that true crises often unfold 
too quickly for Congress to respond in the moment. They are 
akin to an advance medical directive, in which a person 
specifies what action a doctor can take in an extreme situation 
where the patient might not be able to make her wishes known.
    A President using emergency powers to thwart the will of 
Congress, in a situation where Congress has had ample time to 
express that will, is like a doctor relying on an advance 
directive to deny life-saving treatment to a patient who is 
conscious and clearly asking to be saved.
    Congress passed the 19--sorry. Congress passed the National 
Emergencies Act in 1976 to try to prevent abuses of emergency 
powers. The law provided that states of emergency would expire 
after a year unless Congress renewed them--I am sorry--unless 
the President renewed them. It allowed Congress to terminate 
states of emergency without the President's signature, using a 
so-called legislative veto, and it required Congress to meet 
every 6 months while emergencies were in effect to consider a 
vote on whether to end them.
    The law has not proven to be the check that Congress 
intended. Expiration of emergencies after a year, which was 
supposed to be the default, has become the exception. 
Presidents routinely renew states of emergency for years on 
end. The Supreme Court, in 1983, held that legislative vetoes 
were unconstitutional, so now it requires a joint resolution 
signed by the President, or passed over the President's veto, 
for Congress to terminate a state of emergency. And Congress 
has simply ignored the requirement to meet every 6 months to 
review existing emergencies.
    In addition, when Congress passed the Act, it didn't 
include a definition of national emergencies. The legislative 
history makes clear that this omission was not intended to give 
the President unlimited discretion. But the fact remains that 
there are no clearly articulated standards in the law.
    Recognizing the unprecedented nature of this emergency 
declaration, the House has voted to terminate it. The Senate 
should do the same. And if the President vetoes the bill, 
Congress should override the veto. All of the witnesses here 
today agree on that point.
    The courts should also play their constitutional role. 
While the National Emergencies Act gives the President 
tremendous discretion, even the broadest of discretion can be 
unlawfully abused.
    But these responses are not enough. We have now seen how 
the permissive legal scheme for national emergencies can be 
exploited. The next time the stakes could be even higher. The 
Brennan Center has cataloged 123 statutory powers that are 
available to the President when he declares a state of 
emergency. These include some incredibly potent authorities, 
including the power to take over or shut down communications 
facilities, to freeze Americans' bank accounts, or to detail 
members of the U.S. Armed Forces to any country.
    Congress should act now to pass commonsense reforms that 
preserve the President's flexibility in a true crisis, while 
better safeguarding against abuse. I made six recommendations 
in my written testimony, and I will just flag the top two here.
    First, Congress should clarify that an emergency involves 
significant changes in factual circumstances that pose an 
imminent threat to public health, public safety, or other 
important national interests. This definition would leave the 
President with plenty of discretion, just not a blank check.
    Second, Congress should vote that an emergency should end 
after 30 days, or 10 days, if Congress doesn't vote to continue 
it. This, again, would give the President ready access to 
enhanced authorities when he needs them most. But when Congress 
has had time to act--and Congress can act very quickly in the 
face of real emergencies--at that point, it should be up to 
Congress to decide whether emergency powers should be used.
    In short, it is past time for Congress to reassert itself 
in its constitutional role as a coequal branch of government, 
and, again, that is something all the witnesses here agree on.
    [The statement of Ms. Goitein follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Cohen. Thank you, Ms. Goitein.
    Now we have Ms. Nayda Alvarez, who is a teacher, a mother, 
a grandmother, and a border land owner. Her family has lived 
along the border in Starr County, Texas, for at least five 
generations. She has received letters from the U.S. Government 
indicating its intention to take her property for construction 
of a border wall that would cross her backyard. There is a 5 
minutes, and I think you have got green, you are go, yellow, 
you are getting close to ending, and red, over. Thank you, Ms. 
Alvarez, we appreciate your attendance and testimony.

                   TESTIMONY OF NAYDA ALVAREZ

    Ms. Alvarez. Good afternoon. Thank you, Chairman Cohen, 
Ranking Member Johnson, and Members of the committee for 
inviting me here to share my story. My name is Nayda Alvarez. I 
live in Starr County, Texas, in an area known as La Rosita. My 
backyard extends to the Rio Grande River, which forms the 
border between Texas and Mexico. I am here today to testify 
that there is no emergency where I live, and there is no good 
reason for the government to take my property to build a wall 
in my backyard.
    My family has lived on land along the Rio Grande River in 
Starr County for at least five generations. I have lived on 
this land for more than 40 years. My father lives next to me, 
alongside the land where my grandfather lived. We still use a 
wooden corral built by my great grandfather for keeping farm 
animals. My grandchildren and nieces and nephews play in the 
same places where their parents played and where I played as a 
child, along with my siblings and cousins.
    In more than 40 years of living on the border, I can't 
remember ever seeing migrants from Mexico come across my 
family's property. To do so, they would have to cross the 
river, and then they would have to climb up the soft bluff that 
runs alongside the river at the end of my property. The river 
and the bluff create a natural barrier on my family's property, 
a natural barrier between Mexico and my land in the U.S.
    Because it is my property and my family's property next 
door, it is not an area where migrants cross the border. We 
were surprised in September 2018, we received letters from 
Customs and Border Protection asking for permission to come 
onto our land to survey and take soil samples in anticipation 
of building a border wall across our property. We did not grant 
permission.
    In November 2018, another letter was hand-delivered to us. 
In January 2019, we received a third round of letters, stating 
the United States Government is going to take us to court to 
take our property, to build a border wall across our land. The 
government sent maps that show a wall and a maintenance road to 
be constructed feet from the back of my house. This described a 
150-foot-wide enforcement zone between my house and the river, 
but the river's only about 200 feet from my house. And the land 
closest to the river is unstable and subject to erosion. How 
will my house survive?
    In January, using a telephone number provided in the 
January letter, I called a U.S. Army Corps of Engineers realty 
specialist to ask how they would possibly fit the border wall 
and enforcement zone between my house and the river. The person 
I spoke to told me that they were going to build the wall if 
they got money in 2019, even if they had to squeeze it in 
there.
    Even if my house is spared, it will never be the same. I 
will lose my entire backyard, and I will be staring at a wall 
right outside my back door and windows. My family's property 
next door, where we enjoy family gatherings, raise animals, and 
enjoy nature, will be divided by the wall, with about two-
thirds of the land on the south side of the wall.
    Because Congress would not appropriate the funds to build a 
border wall, the President declared a national emergency to try 
to build a wall anyway. The President's end-run around Congress 
is unlawful, as my lawyers at Public Citizen have explained in 
a lawsuit filed against the President on the same day he issued 
his emergency declaration. While my lawyers will argue the 
legalities of the President's action, the bottom line for me is 
that the Federal government is threatening to take my land to 
fulfill a campaign promise, but without any need.
    I can tell you that there is no invasion in Starr County, 
no emergency, no need for a wall across the land. I live on a 
peaceful stretch of property along the river in South Texas in 
the United States of America. No drugs, no gangs, no terrorists 
come across my property. There is no need for a wall on our 
land. My family should not have to sacrifice our ancestral home 
to a campaign slogan.
    We are going to lose our land, our privacy, and our way of 
life. Thank you, again, for granting me this opportunity to 
testify. I am ready to address any questions you may have.
    [The statement of Ms. Alvarez follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Cohen. Thank you, Ms. Alvarez. We appreciate your 
attendance and your testimony.
    Mr. Jonathan Turley, another individual with a Louisiana 
background--although he is a greeny, not a ``Go Tiger''--has a 
J.B. and Maurice C. Shapiro, professor of public interest law, 
and the George Washington University School of Law. Nationally 
recognized legal scholar, has written extensively in areas 
ranging from constitutional law to legal theory to tort law.
    In addition to being the author of over three dozen 
academic articles, he served as counsel in many notable cases. 
Among those was his representation of the House in 2014, in its 
constitutional challenge to certain implementation decisions 
made by the Obama administration with respect to the Affordable 
Care Act.
    He is also a star of stage, screen, and television--at 
least the latter. Professor Turley received his B.A. from the 
University of Chicago and his J.D. from Northwestern. In 2008, 
he was given an honorary doctorate of law from John Marshall 
Law School for his contribution to civil liberties in the 
public interest.
    We appreciate your attendance and welcome your testimony.

                  TESTIMONY OF JONATHAN TURLEY

    Mr. Turley. Thank you, Chairman Cohen, Ranking Member 
Johnson, Chairman Nadler, and the members of the subcommittee. 
It is an honor to appear before you today to talk about this 
very important issue, involving the National Emergencies Act of 
1976.
    As some of you know from my background, I am an unabashed 
and unapologetic Madisonian scholar, and for that reason, I 
tend to favor Congress in fights with the executive branch, and 
indeed, I often appear before members of this committee, like a 
broken record, warning Congress that it is frittering away its 
authority to an expanding executive power.
    Like my testimony, most the testimony of the scholars along 
those lines have been ignored. The National Emergency Act is 
the archetype for this long acquiescence of this body. 
Originally portrayed as an effort to restrict Presidential 
power, it ultimately was passed as a unfettered grant of 
authority, to allow declarations to occur with little check of 
this body.
    This Congress has also tied that type of unfettered 
authority to a history of appropriations that often placed few 
conditions on funds given to the executive branch. The result 
is the long and, frankly, irresponsible history that led us to 
this problem.
    Although I disagree on a policy level, with the declaration 
in this case, it doesn't matter. This problem is the making of 
Congress, not the President. Courts are not designed to protect 
Congress from itself. The National Emergencies Act was a case 
of snatching defeat out of the jaws of victory. Twenty years 
earlier, this body prevailed in Youngstown Sheet & Tube 
Company. It was one of the most important rulings ever to come 
down for the legislative branch.
    In that opinion, Justice Jackson warned that the type of 
emergency powers being claimed by President Truman would be a 
pretext for authoritarian rule, and that emergency powers, 
quote, would tend to kindle emergencies.
    This Congress responded 20 years later by creating a law 
that allowed that very problem to occur. There is an old adage 
that the road to hell is paved with good intentions, and if 
that is true, this body stopped to pass the NEA on the way. It 
started by saying it wanted to restrict the President's power, 
but through a series of amendments I go through in my 
testimony, what came out was basically an unfettered grant of 
authority.
    The result has not been surprising. We have had more than 
one national emergency declared every year since the NEA is 
passed. It would be funny if it was not tragic for this body 
and its inherent constitution. Even express provisions in the 
law, like this body meeting every 6 months to review emergency 
powers, simply ignored. This body hasn't done it once, because 
it was too inconvenient apparently or burdensome.
    Now, if you sense a sense of frustration, then you are 
picking up the truth about how I view this problem. Congress 
created a law that gave unfettered authority. Congress can 
rescind that law. Congress can rescind emergency declarations.
    A court is unlikely to do it. There are two possible 
challenges to the current declaration by President Trump. One 
is a source of authority, and one is the source of the funds. 
The source of authority, which occupies much of the multistate 
complaint, I am afraid, is not a very promising attack on this 
problem. They are unlikely to prevail.
    I can put it no more bluntly than this. This is a national 
emergency because the President says it is. Because you gave 
him that authority. That may seem superficial and simplistic, 
but the NEA is superficial and simplistic. I don't see how a 
court is going to substitute its authority as to what an 
emergency is, when the law itself doesn't even define it.
    As for the source of the funds, there is a simple math that 
leads to a simple problem. This body gave the President roughly 
$1.4 billion. We can debate as to how that can be used. The 
administration has identified multiple sources that would bring 
up the available funds to $8 billion. Even if a court was to 
enjoin two of those different sources of funding, it would 
still be over the $5 billion that the President originally 
sought. So it is unlikely, in the long-term, that a challenge 
will stop this construction.
    Let me end by saying that Oliver Wendell Holmes once said 
that if my fellow citizens want to go to hell, I will gladly 
help them. It is my job. Well, this body has been hell-bent for 
a long time. And you are not going to be rescued from that 
direction by a Federal court. It will send you along your path, 
a long chosen road towards institutional obsolescence.
    I hope that this hearing, instead of focusing on the 
lawsuit which I think is not particularly promising, will look 
at correcting this law, and regaining the authority that this 
body unwisely frittered away in 1976.
    [The statement of Mr. Turley follows:]
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    Mr. Cohen. Thank you, Mr. Turley. Appreciate it, Professor 
Turley.
    Finally, we have Stuart Gerson, who is a member of the law 
firm of Epstein Becker & Green. His practice has centered on 
providing representation to clients in the healthcare industry 
particularly. He has had a long and distinguished career 
serving both as acting attorney general and assistant attorney 
general for the civil division during the administration of 
President George H.W. Bush.
    He also served as an advisor to several Presidents, 
including serving on the transition team of President George W. 
Bush.
    He received his J.D. from Georgetown University Law Center, 
and his B.A. from Pennsylvania State, Penn State. He is not as 
commonly on television as Mr. Turley, but he started with the 
team of Tribe and Gerson as TV personalities. We welcome Mr. 
Gerson.

                   TESTIMONY OF STUART GERSON

    Mr. Gerson. Thank you, Mr. Chairman. Chairman Nadler, 
pleasure to see you again. Mr. Chairman, Ranking Member 
Johnson, and I especially give a nod towards Ms. Escobar, whose 
home county is my client in the litigation that Professor Tribe 
and I are sharing, and which doesn't bear the characteristics 
criticized by Professor Turley.
    I am a life-long Republican. I have been a Republican 
longer than some of you have been alive. And I am a 
conservative Republican, and I enjoy the support of a lot of 
conservatives with respect to the position that I am taking 
today. Indeed, I would take that very position if I agreed with 
President Trump with respect to his desire to build a 
contiguous border wall. I don't. I am a tech wizard and know a 
lot about what DARPA has done since Vietnam in creating 
technical means, and I like those a lot better.
    But I don't favor open borders and I don't know anybody 
here that does either.
    And so I am here as an advocate for the Constitution, and, 
in fact, I agree with 95 percent of everything that I have 
heard from everybody so far. And I expect that to continue.
    Mr. Johnson, Professor Turley and I disagree as to one 
point and that is with respect to the ability of a neutral, of 
a judge, to determine an emergency. But in terms of the 
history, we don't disagree at all, and I was as much a critic 
of acting contrary-wise to Congress by the executive in the 
previous administration as I am presently. As I say, even if I 
agreed with the President, I would have the same position.
    Your job is to revisit the Act, and I am hopeful and expect 
that you will do it, and in so doing, that the Congress will 
stop acting like a parliamentary body, and will act as what 
James Madison, Alexander Hamilton, and the other Framers 
intended, which was an adversary to the executive branch.
    This goes back, even in my lifetime, to the 1940s, and it 
has been a continuous trend. And I say that as somebody who 
represented the first Bush administration arguing in court all 
the way up to the Supreme Court about the President's war 
powers. Different from what we have here, but certainly this 
entire case cries out for the definition of what constitutes an 
emergency, where a President can act, and for how long.
    Why I think a neutral will be able to decide this question, 
notwithstanding my full agreement with Professor Turley that 
the Act, as currently written, looks like a turducken, if I can 
give you a Louisiana reference, you know, things slapped on one 
another, eliminating old emergencies that persisted for years.
    But the reason why I think that a court will be able to do 
that is that I don't think you can be the referee of your own 
game. And I don't think that using just the textualist tools 
that I believe are proper, when I support the judicial nominees 
of this administration, which I generally do, that 
``emergency'' requires a definition. It is got to be an 
exigency of some kind, unplanned, sudden, that requires action 
in a time frame too short for the two political branches to 
confer and to act. That is similar to what other witnesses have 
had to say.
    One can argue about the language, but I think we know what 
an emergency looks like when we see it, if I can paraphrase 
Justice Stewart. And that is what I am asking you to do. As far 
as the litigation goes and our ability to challenge the Act, I 
am comfortable with the positions that we are taking. It is a 
coalition of organizations left, right, and center. None of us 
views it as--as political. It is simply that we believe that it 
is constitutionally impermissible for the President to take 
action in what really is a nonemergency, when the Congress has 
already spoken and told him not to do the very thing that he is 
doing.
    Like in a sport, the Constitution intended that there be 
winners and losers, and something ends a particular dispute. In 
this case, what should have happened was that Congress should 
have had, not only the last word, but the definitive word. I am 
happy to answer your questions, I respectfully ask that my 
prepared testimony be made part of the permanent record of this 
hearing.
    [The statement of Mr. Gerson follows:]
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    Mr. Cohen. Thank you, Mr. Gerson. All of your prepared 
testimonies will be part of the permanent record, and we 
appreciate your testimony.
    We will now proceed under the five-minute rule for 
questions, and I will begin, recognizing myself.
    Ms. Goitein, you gave us two of the ways you thought we 
should change the law. The first one had to do with clarifying 
it was a significant change, and--and the second one was the 
idea that it ended after a certain number of days, 10 or 30 or 
whatever. Can you tell us--you had some others in your 
testimony--can you go over those quickly? And then I would like 
to ask Mr. Turley and Mr. Gerson to comment on your proposals.
    Ms. Goitein. Sure. Thank you for the question.
    My third recommendation was that Congress could renew 
states of emergency on a periodic basis up to 5 years. After 5 
years, it can no longer be called an emergency. It has become a 
new normal of sorts, and at that point, Congress should be 
passing permanent laws, or laws potentially with sunsets, in 
order to address the phenomenon rather than pretending that it 
is still an unforeseen circumstance that is going on.
    The fourth recommendation I made is, right now, under the 
National Emergencies Act, when the President declares an 
emergency, he has access to any of the statutes that are 
available during a national emergency, even if they are 
facially irrelevant to the nature of the emergency. There is no 
requirement in the Act that there be some kind of connection.
    Now, a few of those laws, like 10 U.S.C. 2808, have some 
additional language that cabins how they can be used. Most of 
them do not. And there is no reason for that, and it invites 
abuse. So the law should clarify that emergency powers can only 
be used to address--for the purpose of addressing that 
emergency and not for any other emergency.
    Fifth, the law should make clear that emergency power can 
never be used as an end-run around Congress. So if the current 
Congress has had an opportunity to consider and vote on the 
circumstances that lead to the emergency declaration, then the 
President cannot introduce a national emergency to get around 
what the current Congress has decided.
    Finally, there should be greater transparency in terms of 
how Presidents are using emergency powers. Right now, the 
President has to report every 6 months on expenditures related 
to the emergency. These reports have been filed. Since 2003, 
they have gone missing. I think Congress is getting them, but 
they are not publicly available.
    There should be a requirement, first of all, that the 
reports be made public; and, second, that the reports cover not 
just expenses, but the details of what activities and what 
programs have been put in place, with classified annexes where 
necessary. So those are my recommendations.
    Mr. Cohen. Thank you. First, let me ask you this. On your 
first recommendation, it was that they are significant--only if 
exists significant change in factual circumstances and pose an 
imminent threat to the police powers, or pressing national 
interest. The President could say that there is a factual 
change on the border, and if he did such, how does that first 
recommendation, how would that interface with our current 
circumstance?
    Ms. Goitein. In the current circumstance, I believe the 
only change that he has pointed to, as a factual matter, is 
that there are more families coming to the border seeking 
asylum. And, of course, these individuals are coming to make 
claims they are entitled to make under the law, and they are 
seeking lawful entry into the United States. So that is not 
contributing to the problem of unlawful migration, which he 
cited as the emergency in the declaration. He hasn't cited any 
change in circumstances, any unforeseen developments, which is 
what an emergency is, other than that one.
    Mr. Cohen. Well, isn't he--and maybe you are right and I am 
missing it in his official declaration, but in his--in his 
verbiage, he has talked about drugs pouring in, and he has 
talked about the women being bound and taped and you name it. 
And that is something new, I think. And so new that it doesn't 
exist, but it is new.
    Ms. Goitein. It is new that he is talking about it. I think 
what we have to understand is that a problem is not the same 
thing as an emergency. Even a very serious problem is not the 
same thing as an emergency. ``Emergency'' has a meaning. It is 
not that obscure a word. And it does relate to unforeseen, 
sudden changes in circumstances that require an immediate 
response.
    Most of the things the President has talked about--drugs, 
unlawful border crossings, crime--are things that if you look 
at the government's own statistics, they are not getting worse. 
If anything, they are getting better.
    Mr. Cohen. Thank you.
    Professor Turley, what are your thoughts about her five 
recommendations, and do you have any others that are in 
addition to that?
    Mr. Turley. Well, I--I think it might--I haven't really 
looked very closely at the recommendations by my fellow 
witness, but I would put up a cautionary flag that you should 
not try to write with such specificity, that you turn this into 
an endless form of litigation, and debate over the meaning of 
what is a problem, what is an emergency. You can define 
``emergencies.''
    But I think the key failure of the NEA is that this body 
doesn't have to take an affirmative act to allow an emergency 
declaration to continue. As I say in my testimony, originally, 
the bill had that in it. Originally, the Congress did the right 
thing and said that after a certain period, we have to 
affirmatively agree that there is an emergency, and for it to 
continue. So without that agreement, it is a dead letter. That 
was removed at the insistence of the Ford administration. That 
could solve a lot of these problems. You wouldn't have to get 
into all of the weeds as to, you know, what type of conditions 
are going to trigger what type of provisions.
    As long as this body had to affirmatively agree that an 
emergency existed, then you could hold a hearing and address 
many of the fine issues that my co-witnesses identify, and I 
agree entirely that those are relevant factors to consider.
    Mr. Cohen. Thank you.
    Mr. Gerson.
    Mr. Gerson. Well, I am not sure that life can't continue 
very well without this Act altogether, because one starts with 
the Constitution. But speaking to the Act, and you are here to 
amend it, I mean, remember that its purpose was to clear the 
deck of a bunch of emergencies that were a decade old and were 
littering the field.
    And remember, also, that your fundamental power, that 
undergirds any of this is the power of the purse. And so what 
you ought to be doing, it seems to me, is, by amending this 
statute clearly--and everybody agrees about this--that you need 
a clear, plain English definition of what constitutes an 
emergency.
    What you are saying is, we are giving license to the 
executive to carry on, on this--on this basis without our 
intervening to cut off that activity by taking action with 
relationship to finance, what your Article 1 powers are. I 
mean, so you need to think--you are thinking about process when 
you do this.
    And as I say, I start with the Constitution. And first and 
foremost, I think a clear definition, some practicable time 
frame should be attached to that, and the rest should be up to 
considering how this actually will work in practice, how 
Congress can play a meaningful role, particularly the House 
which has this ability to originate revenue bills and 
appropriations bills, and how that--how that will work in 
practice.
    That shouldn't inhibit a President, for example, with 
respect to the exigencies of exercising the war powers or 
foreign affairs powers, assuming that there is an emergency. 
Avoid those kinds of problems. Avoid the kinds of problems that 
the Tonkin Gulf Resolution created. I think with historical 
reference, with a look back, with some common sense, you can 
simplify this, make it clear, define what your role is, and 
take a much more activist role, given the limited, but very 
profound, power that the House of Representatives has.
    Mr. Cohen. Thank you, each of you, and we will come back to 
this, I am sure. But right now I recognize the ranking member, 
Mr. Johnson, 5 minutes.
    Mr. Johnson. Thank you, Mr. Chairman.
    Professor Turley, can you just describe for us how the 
Obama administration's use of nonappropriated funds for 
healthcare insurers differs from this current situation, the 
Trump administration using statutory authority here.
    Mr. Turley. Well, there is a very significant difference. I 
was a bit alarmed when I saw some members talking about using 
the precedent we created in Burwell to challenge this 
declaration as a body. And in my testimony, I strongly 
discourage that.
    One of the reasons I took the Burwell case is, I have been 
a long believer in legislative standing. I believe a lot of the 
problems that we have today is that there are some types of 
constitutional violations by Presidents that can't be 
challenged in court. They are sort of blind spots. And 
legislative standing solves that problem. This body worked for 
decades to get a court to--to recognize legislative standing, 
and we prevailed on that.
    I--quite frankly, I don't think this is a very promising 
litigation, and I would not put that precedent at risk.
    Now, the reason it is not the same situation is that what 
President Obama did, was, as you described, they came to 
Congress to ask for funding for the insurance agency--insurance 
companies, under 1402's program. And this body, for whatever 
reason, declined to do that. The administration then declared 
that this would be a sort of implied permanent appropriation, 
much like the appropriations that pay citizens their tax 
refunds. That Congress doesn't require the IRS to come to you 
every year and say this is the amount of money we want to give 
citizens. You give a permanent appropriation. It is like an 
open credit card. That is something this body does not like to 
do, unless it really seriously looks at whether it wants that 
type of year-in, year-out type of appropriation.
    What the administration said is that we will pay this 
directly out of the Treasury, and that is what Judge Collier 
said was a no-go. She just said, look, this is 
unconstitutional, Congress never said that, and this would 
really destroy the power of the purse.
    That is not what President Trump is doing. You can disagree 
with his policy, but he is acting under a Federal statute that 
gives him this authority, and he is using appropriated funds.
    Now, we can--I actually think that the challenge on the 
source of the funds could potentially have a positive ruling 
for the challengers on some, I doubt if on all of the funds. 
That is a statutory issue that we can debate. I talk a little 
bit about it in my testimony.
    But that is very different from what happened in Burwell. 
And so what I encourage this body to consider is, regardless of 
where you come out on this, there are ample lawsuits pending, 
and they are being well litigated, including some by friends of 
mine. Let that happen. The members can come in as amicus curiae 
but protect the precedent that we were able to win in Burwell.
    Mr. Johnson. Thank you for that. One more question. To what 
extent does the Supreme Court consider Presidential rhetoric 
when they are interpreting statutory authority? So, I mean, are 
they going to consider the legal provision that governs, or are 
they going to look at comments made in the press? You know, we 
remember President Obama famously said, if you like your 
healthcare plan, you can keep it. But could people have sued to 
keep their plan even if they didn't have that right under the 
ObamaCare statute itself?
    Mr. Turley. I actually may create a course on Presidential 
rhetoric after this administration and its use in 
constitutional interpretation. I have to say that I disagreed 
with the Ninth Circuit to the degree to which it utilized the 
President's tweets and campaign statements in reaching its 
decision on immigration. I thought the first immigration order 
was dreadful. It was poorly written, poorly defended. It was--
it was really a product that was shocking.
    But, ultimately, the Supreme Court agreed with the 
administration on the underlying core issues, and that opinion 
recognized the President's inherent authority on the border. 
Usually, courts are reluctant to go outside the record to read 
the motivation behind a declaration or, for example, the 
motivation of this body, in legislation. They tend to try to 
stick to what you say in your official documents, and they do 
the same with the President.
    So I understand that the President certainly stepped on his 
lines when he talked about the fact that he really didn't have 
to do this, but I do not believe that that is going to be 
determinative, and I am not even entirely sure it is that 
relevant.
    Mr. Johnson. So tweets cannot alter an order or a statute? 
No, that is my words, not yours.
    Real quick, Ms. Alvarez, I just had a quick question. And I 
don't mean this disrespectfully. It is an honest question. But 
you described your property, you said, in some part of the 
property, you use a wooden corral built by your great 
grandfather, you have been there for a number of generations, 
and there is a soft bluff that separates the river and your 
property. And you said very conclusively that there has never 
been, in your words, no drugs, no gangs, no terrorists have 
ever come across that property. The question is, do you have 
video surveillance of your whole--that whole length of your 
property?
    Ms. Alvarez. Not of the whole length of the property, but 
towards the part where my home is and my parents' home, yes.
    Mr. Johnson. Does someone monitor it like through the 
night, like 24/7? I mean, the question is, how do you know, how 
can you be certain that no one has ever crossed your property 
illegally?
    Ms. Alvarez. Well, it does capture Border Patrol people 
going through my property, and it sends alerts. So therefore, 
if somebody else would be passing through there, I would get an 
alert. I haven't gotten any.
    Mr. Johnson. Thank you. No further--I am out of time. Thank 
you, I yield back.
    Mr. Cohen. Thank you, Mr. Johnson.
    I now recognize the chairman of the full committee, Mr. 
Nadler.
    Chairman Nadler. Thank you.
    Professor Turley, I unfortunately agree with you that 
courts are very reluctant to question the President's honesty 
or--any President's honesty or motivations, and go behind his 
determinations, but I think that on this one, at least as to 
the use of military funds, he wants to move military funds to 
have the border guarded by building a wall with military funds. 
Presumably, the wall is a military asset for military use. But 
the Posse Comitatus Act specifically says the military cannot 
be used to enforce domestic law. So how can you justify use of 
military funds for military purpose--for a military purpose 
that is denied to be a military purpose by law?
    Mr. Turley. Now, that is an excellent question, and it will 
be an issue the court will have to deal with. I have to say 
that I am skeptical----
    Chairman Nadler. Because?
    Mr. Turley. Because the military has been used on the 
border in the past. Presidents have called the military to the 
border. It is a classic use of the military.
    Chairman Nadler. Have they ever been challenged in court?
    Mr. Turley. Not that I recall. But I doubt a court's going 
to seriously debate whether a President has the authority to 
send the military to the border.
    Your point, Mr. Chairman, is a perfectly good one, to the 
extent that they are doing law enforcement duties, that does 
bring up Posse Comitatus. That is a legitimate----
    Chairman Nadler. Immigration law is law enforcement duties.
    Mr. Turley. But the----
    Chairman Nadler. Drug smuggling is--what would they be 
doing that wouldn't be law enforcement duties?
    Mr. Turley. Well, because the border is also a national 
security border. It is a classic use of the military. They 
patrol the border. And I am just saying how I believe a court 
is going to view this.
    Chairman Nadler. But the patrol the border, presumably, 
against foreign troops. Insofar as they are talking about drug 
smuggling or illegal immigration, that is domestic law 
enforcement.
    Mr. Turley. Well, I would say that border protection is a 
mix. And the question is, are you--do you expect a Federal 
judge to say, you can't order troops to the border to deal with 
border security? The answer is--
    Chairman Nadler. No, but I expect a Federal judge maybe to 
say, you can't order troops to the border to deal with drug 
smuggling or illegal immigration. National security, yes. If 
the Mexicans are going to invade, 1848 isn't that long ago, 
yeah.
    Mr. Turley. Yeah. I do--I do think that this body can 
correct this problem. It can create clarity on the use of 
this----
    Chairman Nadler. Mr. Gerson, would you comment on that?
    Mr. Turley [continuing]. Because it doesn't currently exist 
in the statute.
    Mr. Gerson. On which part of it?
    Chairman Nadler. On the use of military forces to enforce 
domestic law, or is that what is happening here?
    Mr. Gerson. I agree with you in the abstract, but in the--
in the real, I have to agree with you, because that is a point 
that we make in our litigation, and I expect it to be accepted. 
I think the--I think what--what to me is the right answer to 
that, comes from the fact that, sure, the President can 
dispatch troops to the border for a reason that is consistent 
with Presidential war powers. There needs to be an underlying 
fact. If it is just a question of interdicting immigrants, that 
doesn't relate to the enumerated power that the President has.
    Chairman Nadler. So the express purpose of the wall, which 
is to interdict immigrants and prevent smuggling, would not be 
a military purpose within the meaning of the Posse Comitatus 
Act?
    Mr. Gerson. Again, I am on the public record in our filing 
saying that, and I happen to agree with it, but I am not free 
to say anything else either. You know, as to the--as to other 
issues, can this be vindicated, of course it can. I am not 
burdened by--I am not commenting on anybody else's lawsuit, but 
I am not burdened by the problems that congressional standing 
raises.
    Chairman Nadler. Okay. Let me ask--let me ask one other 
question. I agree with you on congressional standing, and I am 
glad of that. In fact, it gets to a different question, which 
is probably a little off topic, but I will mention it here, 
anyway.
    The Justice Department maintains, as a matter of law, that 
no President can be indicted. As a matter of law. Okay. Justice 
Department maintains a lot of positions that one might contest 
and think they are wrong. Normally, however, one can test it in 
court. If the Justice Department thinks it can indict you for 
something or other, it indicts you. You move to dismiss on the 
grounds that it is--whatever the grounds are, and the court 
will decide. But if the Justice Department decides it cannot 
indict a President as a matter of law, then it won't do so, and 
how does a court ever decide--how do you ever get the court to 
decide whether the Justice Department is right or not? It seems 
to me there is a catch 22 there, but I--go ahead.
    Mr. Gerson. Well, I am quite familiar with that provision. 
It was written with respect to the potential indictment not of 
a President, but the Vice President.
    Chairman Nadler. Right.
    Mr. Gerson. And it--it wasn't tested. It--it served----
    Chairman Nadler. My point is, it cannot be tested.
    Mr. Gerson. I think you are probably right. I think that 
there is a range of nonjusticiable disputes that will never be 
tested. There are some that relate to war powers that will 
never be tested.
    Chairman Nadler. Okay. Let me ask one last question because 
that is a different topic. What would you think of a statute--
and Ms. Goitein recommended some version of this--that said any 
Presidential declaration of emergency automatically ends in 10 
days or 30 days, if the Congress hasn't affirmatively acted to 
extend it, or to ratify it?
    Mr. Gerson. Well, it is impracticable.
    Chairman Nadler. Why?
    Mr. Gerson. I think that my fundamental look at that is 
not--is not so much philosophical. I mean, how quickly can 
you--can you obtain meaningful action, and what happens--put 
aside dealing with issues of border security that have gone on 
for years that you can--that you can debate forever and come up 
with conclusions--what if we were under attack of some kind, 
say a cyber attack that hit us on many fronts that was----
    Chairman Nadler. Well, the President could--the President 
could act, could declare an emergency, could act on the 
emergency. Congress, within 10 days or 30 days, could decide to 
extend it or not.
    Mr. Gerson. Again, I go back to something I said earlier, 
you can extend it forever. But when you--when you get to what 
the fundamental congressional power is, it is the power of the 
purse. And so what you are--what you are going to do is 
something that relates to the power that you actually have. If 
you disapprove what the President is doing, you are going to 
take steps to cut off his ability to do it, or her ability to 
do it.
    Chairman Nadler. Well, either--either you act to--either 
you automatically cut off the declaration of emergency if 
Congress doesn't declare it in a certain period of time. To act 
on the power of the purse, requires a two-thirds vote to 
overcome the President's veto of your prohibition on his use of 
money, and that is shifting the burden.
    Mr. Gerson. Yeah, I don't care--I don't say that you are 
not going to have a practical and constitutional difficulty if 
you--if you do what you are going to do. Let me just say this: 
I think with clearer definitions as to what constitutes an 
emergency, you are going to be on much better grounds, not only 
judicially, but politically.
    Chairman Nadler. Clear definitions are certainly in order. 
But without--without a time limit within which Congress has--
which was originally the intent in 1976--without restoration in 
some version of that, it seems to me to say that Congress, to 
stop the appropriation of money, needs a two-thirds vote, is 
turning Article 1 on its head.
    Mr. Gerson. Well, what happens--it is not my job to ask you 
the questions, but yours to ask me. But as you war-game this in 
committee, what is it that you think happens after the 
expiration of 10 days or 30 days?
    Chairman Nadler. Whatever authorities that the President 
was granted in the--by the emergency declaration cease.
    Mr. Gerson. And what if--what if the President doesn't do 
what you want?
    Chairman Nadler. Well, that is always a question. 
Hopefully--
    Mr. Gerson. Yeah, but, again, I think the time limit issue 
is somewhat--is somewhat artificial, that it may be helpful to 
have a time limit. You ought to consider that. But what happens 
at the end of it? I think--I think you need to think that 
through.
    Chairman Nadler. Thank you very much.
    My time is very much expired.
    Mr. Cohen. Thank you, sir. And I wasn't going to call time 
on the chairman, but Mr. Johnson did mention there were flights 
coming. So thank you for mentioning time limits.
    Mr. Armstrong of North Dakota is recognized.
    Mr. Armstrong. Thank you, Mr. Chairman.
    Professor Turley, and I am just going to start with, I 
think this is a great conversation to have. This is an 
abdicated--we have abdicated this responsibility over the 
course of 30 years. And taking some power back on this side of 
the aisle, and oftentimes the only time you can do it is 
looking into the future instead of looking into the present, 
because the President becomes highly polarized, and we all know 
that very well. And if you didn't before this week in Congress, 
you sure do today. So I do appreciate all that.
    But my question is, not based on how Congress can act to 
change the law, because I think we should. My question is, 
under the current law, as it stands now, what risks do you see 
by those who are filing these lawsuits against the President? I 
mean, just kind of along the lines of, be careful what you wish 
for, you might get it.
    Mr. Turley. Well, there is a chance of bad cases making bad 
law, and that is always a concern you have when you look at a 
high-profile case. I don't see how these cases can prevail 
under the existing law. I don't see a good-faith argument that 
President Trump lacks the authority that he used, because there 
is virtually no conditions on that authority.
    And I also don't see how a judge is going to run the table 
on every one of the sources of these funds. Some of them 
seems--will likely go through. And it is more than enough for 
the next 2 years to start construction.
    I think the more productive use of our time is to focus on 
how we can have a workable solution to the NEA, which had some 
very noble purposes at the outset, and one of those is to--to 
go back to the original draft and the concept of having an 
affirmative act from Congress after some period of time.
    Mr. Armstrong. And that is another question I just have. We 
talk about legislative intent. We talk about what happened in 
the--what was originally in the Act and then taken out of the 
Act. But before we can ever get to that, we have to deal with 
the statutory framework as it exists. So you only go to 
legislative intent if there is a discrepancy in the statute. 
And I would argue--I am not nearly as accomplished a lawyer as 
the gentlemen sitting down there are--I mean--but--or the 
witnesses sitting down there, but it is so vague in so many 
different ways, and so broad-based that I don't know how you 
would find a discrepancy in it, particularly in order to ever 
go to those kind of questions.
    Mr. Turley. No, you can. And history actually works against 
the challenge, that most of the emergencies that have been 
declared are largely economic and diplomatic issues. And, 
frankly, they are not that significant in terms of emergencies. 
Most people, frankly, in the United States had no idea that 
there is dozens of national emergencies ongoing. They didn't 
have any idea that we had an emergency over uncut diamonds from 
Africa or Zambians who might be, you know, passing transfers of 
wealth.
    The problem is that this is so easy, that the 
administration--past administrations have just used it to get 
an edge or to deal with a problem, internationally, on a 
unilateral basis. So when a judge looks at this, is she really 
going to say, even though we have never ruled that a President 
cannot exercise the authority in this way, even though we have 
had dozens of still-ongoing emergencies, I am going to use my 
judgment as to what constitutes an emergency on the border, on 
the NEA, even though emergencies aren't defined.
    Now, you might find a judge like that, but at the end of 
the day, I don't think you are going to prevail. I mean, that 
is what judges are not supposed to do. They are not supposed to 
substitute their judgment for what is an emergency. And when 
people say, Look, well, it is not an emergency because look how 
the numbers have declined, there is less than 400,000, you 
know, people being--being captured or arrested along the 
border. Once again, a judge is going to say, Look, it is not my 
job to say that 1.2 million is an emergency and 400,000 is a 
problem.
    Elections have consequences. This President ran on this 
being a national-security concern. He won. And he declared this 
as a national emergency.
    Mr. Armstrong. And in my effort to get everybody to their 
flights, I will yield the rest of my time.
    Mr. Cohen. Thank you, sir.
    Mr. Raskin from Maryland, Professor Raskin, you are 
recognized.
    Mr. Raskin. Thank you, Mr. Chairman, and thanks for all of 
your great testimony.
    Let me try out a theory on the witnesses here. I noticed 
that most of the cases have been brought first in the name of 
the Constitution, and then as a statutory matter, which I think 
is the right way to do it. To me, the whole current situation 
is solved by the steel-seizure case, where President Truman 
came to Congress asking for authorization to be able to seize 
the steel mills and Congress said no. Then the President went 
out and did it anyway, and then the Supreme Court ended up 
saying no, it is a red light by Congress, you can't run the 
red.
    And that is exactly what has happened here. The President 
came to us, asking for money for the border wall. In good 
faith, what have you, we had a disagreement. We didn't give it 
to him. Now, he very blatantly, clearly, explicitly wants to go 
around the back of Congress and say I am just going to go ahead 
and use this money anyway. So we say that it violates our power 
of appropriation and the power of the purse, and the steel-
seizure case is on point.
    Now, if they want to plead that they have got some 
statutory authority to do so, we very simply say, Well, no 
President has ever been able to invoke one of these rare, 
emergency provision statutes for the purpose of circumventing 
the will of Congress, the express will of Congress. And I don't 
see why that doesn't settle it, and I don't see why we would 
lack legislative standing, without saying one way or another 
what Congress would do in that situation. But can you guys just 
illuminate a response to what I am thinking? Mr. Gerson?
    Mr. Gerson. Well, I am not dealing with the problem of 
legislative standing in the litigation that I am bringing. I 
represent El Paso County and some other groups that are--not 
only directly but immediately injured, and have to do things 
now and so----
    Mr. Raskin. And you are actually facing something like use 
of eminent domain power.
    Mr. Gerson. That is right. And the planning that has to do 
with that. We will deal with all those issues in time.
    I have been an opponent of congressional standing. I think 
that it is rare that it can be supported because I do believe 
in the political-question doctrine. What distinguishes this 
case that--that we have, that a judge doesn't have to make his 
or her own determination as to what constitutes an emergency. 
This case can be decided on the--on just the grounds that you 
describe. Obviously, you have read our papers and endorse 
everything that we have said to the District Court, but what a 
judge can, and I hope does say in this case, is that this so-
called event lacks all the characteristics of an emergency. I 
can think of any number of things that----
    Mr. Raskin. But are you speaking in constitutional or 
statutory terms?
    Mr. Gerson. Well, I am speaking in constitutional terms, 
that a judge doesn't have to exceed textualism, if you will.
    Mr. Raskin. But we don't have a constitutional definition 
of ``emergency.''
    Mr. Gerson. More importantly, you don't have a statutory 
one. And so----
    Mr. Raskin. Well, at least the word ``emergency'' appears 
in the statute.
    Mr. Gerson. Yes, but it is--but it is undefined. And there 
can be----
    Mr. Raskin. Yeah.
    Mr. Gerson [continuing]. Emergencies, and there can be 
emergencies.
    Mr. Raskin. Yeah.
    Mr. Gerson. But in this case, where Professor Turley and I 
disagree is with respect to what the ability of a court is to 
decide something that, to me, is of an objective nature, that 
is within the realm of permissible activity by the judiciary.
    Mr. Raskin. Yeah.
    Mr. Gerson. We also can win this case on purely statutory 
grounds for reasons that----
    Mr. Raskin. Yeah.
    Mr. Gerson [continuing]. Mr. Nadler pointed out and you 
would advert to.
    Mr. Raskin. Yeah. I mean, I tend to say I agree with Mr. 
Turley that on the statutory grounds, it is more ambiguous 
because it appears to be, you know, a delegation to the 
President. Of course----
    Mr. Gerson. Well----
    Mr. Raskin [continuing]. If the interpretation is 
completely deranged and off the wall, then maybe a court 
would----
    Mr. Gerson. Yeah, but there are two parts to the statutory 
grounds. I mean, I think that a court can say this is not an 
emergency, because it lacks all the objective criteria that any 
emergency would need to have.
    Mr. Raskin. Yeah.
    Mr. Gerson. But in addition, with respect to the use of 
funds----
    Mr. Raskin. Yeah.
    Mr. Gerson [continuing]. I am very confident that we are 
going to prevail on that----
    Mr. Raskin. But doesn't----
    Mr. Gerson [continuing]. and prevail in front of 
conservative judges.
    Mr. Raskin. But doesn't the cannon of constitutional 
avoidance help you, too, that you want to interpret the statute 
in a way that is consistent with the Constitution, and here, 
the Constitution completely militates for a reading which 
protects Congress' power over the purse rather than giving the 
President license to mangle the legislative will.
    Mr. Gerson. Now we are leaving Justice Jackson concurring 
in Youngstown Sheet & Tube and moving to Justice Frankfurter 
and Ashwander. Yeah, certainly, constitutional avoidance can be 
applied, and we can win this on a pure--on a pure statutory 
ground. I think it is more likely to go back to--to Justice 
Jackson. This is, to me, one of those things that he describes 
in his third category of disputes, the justiciable category, 
because as you pointed out, the President is directly 
disobeying what the Congress has legislated.
    Mr. Raskin. Okay. Mr. Turley.
    Mr. Turley. Hi. I think that the staff, part of the fun 
they had, for Stuart and I to share the same mic as he argues 
against legislative standing. It took everything I could not to 
push the button.
    I strongly disagree with Stuart about his objections to 
legislative standing, but we can put that aside. What I would 
encourage the committee to consider is that there is no need to 
use that. The concern I have is that there has been a long 
suspicion that judges go to standing when they don't want to 
deal with a tough question. And so if you--you use legislative 
standing on this issue, you risk a judge avoiding these 
difficult questions and just saying, You know what, I have come 
to a different conclusion, you don't have standing. And you 
don't have to take that risk because you have got people who 
are ably arguing this.
    But the one thing I have to disagree with--and I see this 
with great respect because you are my ideal of a law professor 
with Article I authority--something that----
    Mr. Raskin. A minor particle of it, but, yeah.
    Mr. Turley. I would disagree with you, this is not 
Youngstown. In Youngstown, Hugo Black said, There is no statute 
underlying the exercise of authority. There is a statute here. 
You gave them a statute. And Jackson's first category----
    Mr. Raskin. We are talking about the most recent 
legislative pronouncement on the issue. We had a very specific 
answer as to the request for money for the wall.
    Mr. Turley. Yeah.
    Mr. Raskin. And the President was clear about that; we were 
clear about that. I mean, there is no ambiguity here.
    Mr. Turley. No, but that is not the same thing. Just 
because you did not grant an appropriation is not the same as 
an authorization of authority which you gave to the President. 
And this is the first category under Jackson. Jackson says that 
if there is an underlying statute, the President----
    Mr. Raskin. That has been overridden by a more recent 
statement by Congress? I don't think so.
    Mr. Turley. I don't think statutes are overridden by 
statements of any kind. You simply decided how much money to 
give the President. That doesn't speak very loudly to some 
amendment of NEA.
    Mr. Raskin. All right. I am going to have to yield back, 
but can I just ask you one very quick question. Would you agree 
that--would you agree that Congress should use its power under 
the current statutory framework to say that there is no 
emergency, and to override the President?
    Mr. Turley. Yes. I love Congress standing up for its 
authority.
    Mr. Raskin. Okay. Thank you very much. I yield back.
    Mr. Cohen. You are welcome, Mr. Raskin.
    Next, we will recognize Mr. Goodlatte's successor, Mr. 
Cline.
    Mr. Cline. Thank you, Mr. Chairman.
    I want to continue that line. So, Mr. Turley, in the 
absence of a positive act to prohibit, are we to infer, you 
know, Congress not providing the money that the President 
requested, that there is a statutory prohibition, therefore, to 
any action to provide money for said wall?
    Mr. Turley. Yeah, it doesn't work that way. It is like 
Woody Allen saying, I wish I had a positive thing to say, let 
me give you two negatives. It doesn't work that way. That is, 
you have a positive grant of authority under the NEA. Your 
decisions under appropriations are informed by various issues, 
of how much money you want to give, under what circumstances, 
how are you going to tie the money in. A court is not going to 
use that as a constructive amendment of the National 
Emergencies Act. It is just not going to do that.
    And so what you have is what Jackson described as the first 
category where a President's authority is virtually 
unassailable, a grant of authority by the Congress to the 
President that he is using. And you can disagree with the 
decision that he is making, but you gave him that authority. 
You have the ability to rescind the emergency, and a court is 
not going to do that for you.
    Mr. Cline. I want to drill down--well, I will get to you in 
a minute, Ms. Goitein--the authority that was granted by 
Congress in 1976, Congress had enacted over 470 statutes by 
1973, and so what we are doing, is, we are allowing under the 
statute, using appropriated funds for military--in support of 
military action. Didn't--wasn't the military asked by 
Immigrations Customs Enforcement for assistance at the border?
    Mr. Turley. Right. Part of the problem with going down on 
the military construction is precisely that. Agencies are given 
deference under the Chevron doctrine, but more importantly, 
unlike the first immigration order, this thing is likely to be 
armor-plated with agency findings. A court is hard-pressed to 
substitute its own judgment for those agency decisions, 
including the need for military forces. Where there is a Posse 
Comitatus issue--and I think that can be a real issue--will go 
to what exactly they are doing along the border.
    But if you--as I say in my testimony, I drilled down on 
each of the sources that the President has cited for these 
funds, and there are very strong arguments under every one of 
them that he can, in fact, use these funds. This has been a 
longstanding problem. When President Obama launched the Libyan 
war, I represented both Republican and Democratic Members 
opposing that war for the absence of a declaration and absence 
of an appropriation. President Obama funded that war out of 
loose change.
    I mean, this body gives so much money to the executive 
branch, without many conditions, that he was able to fund a war 
out of what was just sloshing around.
    Mr. Cline. And isn't it true that it is not even--emergency 
authority is not even required----
    Mr. Turley. That is right.
    Mr. Cline [continuing]. To move money around within 
departments----
    Mr. Turley. That is right.
    Mr. Cline [continuing]. In various cases.
    Okay. So, Ms. Goitein, I want to move beyond the debate 
over what the President has done, and, quite frankly, this 
hearing would have--if this hearing is designed to examine 
that, it would have been better if we had had it before Tuesday 
or whenever the vote was by the House.
    But looking forward, I think we have a great opportunity 
here to make Article I great again. And so I want to follow up 
on your suggestions. Publicly available reports, can you expand 
a little bit about what is missing and what we need to be 
doing?
    Ms. Goitein. Well, it would be great, to start out, if you 
guys could find them and make them public. Because the 
President is supposed to report to Congress every 6 months on 
expenditures associated with states of emergency. That happened 
up through, I believe it was 2003. At that point, President 
Bush delegated all of the emergencies other than 9/11 and the 
Cuba Naval Blockade, at that point, were issued under IEEPA, 
the International Emergency Economic Powers Act. And President 
Bush delegated to the Treasury Department the authority to 
submit those reports.
    From that point on, you can't find them in the 
Congressional Record. They were no longer read into the 
Congressional Record. So they are not publicly available from 
2003 on.
    We also haven't been able to find any of the reports on the 
9/11 state of emergency. If you can find those and make them 
public, that would be terrific. We have, of course, filed a 
FOIA request for those. But what I would say is, going forward, 
that was another omission in the statute for accountability 
purposes, that the NEA did not require those reports to be made 
public in some form and also was a little too minimalist in 
what it asked for in those reports. The expenditures give us 
some information, but not quite enough.
    Mr. Cline. I do agree that we need to more clearly define 
what an emergency is. I disagree with you that Congress 
unintentionally left that out of the 1976 NEA. I think the 
President is fully acting within his authority to define that 
emergency. He has stated multiple times he believes there to be 
an emergency at the border, and I concur with that, given the 
humanitarian crisis that is ongoing and the lack of ability of 
ICE to handle that threat and that emergency on its own.
    So--but putting that definition in the Code is something I 
would agree with, and would be happy to work with the chairman 
toward that end. And with that I yield back. Thank you.
    Mr. Cohen. Thank you, sir. Good maiden speech.
    Ms. Scanlon, you are recognized.
    Ms. Scanlon. Thank you very much.
    I think it is great that we seem to have agreement by all 
four of our witnesses today that Congress should assert its 
power to declare this national emergency null and void, so it 
is great we have got a starting point. I just want to look at a 
little bit of the underpinnings on the differences in opinion 
that folks have.
    Professor Turley, you have given your opinion that the 
absence of an explicit definition of ``emergency'' in the 
National Emergencies Act gives the President virtually 
unfettered authority to determine when we have an emergency, 
right?
    Mr. Turley. That is correct.
    Ms. Scanlon. Okay. So you have argued that if we accept 
your definition that this President, or a subsequent President 
could, for example, declare gun violence to be national 
emergency, right?
    Mr. Turley. I don't see a basis to deny that, because there 
is no definition.
    Ms. Scanlon. Okay. And similarly, if we accept your 
definition that there is--or your argument that there is no 
definition, then a President could declare climate change to be 
a national emergency?
    Mr. Turley. Yes. The only--the only caveat I would note, 
when the chairman referred to melting down guns, for example, 
is that just because the President has the authority to declare 
a national emergency, that does not suspend the United States 
Constitution. So acts like that could very well violate the 
Second Amendment or a President could violate other amendments.
    So the national--the Congress could not pass a statute that 
allows for the suspension of the Constitution unless it is a 
suspension of habeas corpus.
    Ms. Scanlon. Okay. And that is kind of where the rub seems 
to be here, and that is the part that I am interested in. At 
what point does the declaration of a national emergency start 
encroaching on explicit, constitutional language or implicit, 
constitutional language?
    So, I mean, as I was looking at your argument that the 
absence of a definition means there is unlimited authority, I 
did what a lawyer does, and I started looking at dictionaries, 
because in the rules of statutory construction, we look at the 
purpose of a statute, or then we look at the plain language, 
the plain meaning. So when I looked at Black's Law Dictionary 
and Webster's and everything, I found the definitions differed 
a little, but the clear commonality was words like ``sudden'' 
and ``unexpected'' and ``unforeseen.'' And having worked in the 
immigration law sector for many years and having visited the El 
Paso border with my colleague, Representative Escobar, 
recently, I can tell you that the situation at the border isn't 
sudden or unexpected or unforeseen.
    So with that, Ms. Goitein, you have pointed out that--you 
spoke in your testimony about abuse of emergency powers. Can 
you speak to whether the situation at the border meets, either 
the statutory intent or common definition of an emergency, and 
whether it may be pushing so far into the idea of undermining 
constitutionality?
    Ms. Goitein. Thank you for that question. I certainly agree 
with Professor Turley that the National Emergencies Act gives 
the President pretty much maximal discretion. However, as I 
said in my opening statement, even the broadest discretion can 
be unlawfully abused, and I see that as having two dimensions 
in this case.
    One is that I do think that courts are entitled and 
certainly Congress--are entitled to look at the plain meaning 
of words. We don't have to pretend that President Trump could 
define ``emergency'' as its opposite. There are some basic 
parameters that must be adhered to, and that I think courts are 
allowed to consider--either take judicial notice of, or look at 
a dictionary.
    So I don't think that the President could say that a potted 
plant is an emergency. It just wouldn't work. There is not that 
much discretion, necessarily.
    But the second part of this is what both of you were 
talking about, which is that Congress cannot give the President 
discretion to violate the Constitution. The President could not 
declare a national emergency because too many people of color 
are voting. The President could not declare a national 
emergency because newspapers are publishing editorials critical 
of him.
    And there is strong evidence in this case that the 
President declared a national emergency because Congress 
exercised the power of the purse. That is a constitutional 
prerogative of Congress that he is trying to undermine with 
this declaration.
    Professor Turley's analysis treats Congress' repeated votes 
against funding the wall as if they were legally irrelevant. 
And I don't believe they are. I think they could factor in, in 
a number of ways, but the one I mentioned just now is one.
    Ms. Scanlon. Okay. If I can quickly move to Mr. Gerson, can 
you comment on the constitutional problem created by the 
President's declaration of a national emergency following the 
considered bipartisan, bicameral vote by Congress to fund a 
variety of border-security measures other than the wall 
proposed by the President?
    Mr. Gerson. Well, that is the--that is the constitutional 
crux of our argument. That is the point at which it begins. We 
wouldn't be able to fit into Justice Jackson's third criteria 
without disobedience of a congressional edict by the executive. 
So that is our starting point.
    Ms. Scanlon. Okay.
    Mr. Gerson. If you are implying that you agree with me, I 
am happy to know that.
    Ms. Scanlon. Yes, I do. Thank you very much. I yield back.
    Mr. Cohen. Thank you. The Republicans have exhausted their 
witnesses, and so we will recognize Ms. Garcia from Houston.
    Ms. Garcia. Thank you, Mr. Chairman.
    And I just wanted to make a little comment here. We keep 
talking about campaigns and campaign slogans, and I think one 
of our colleagues mentioned, make Article I great again. I 
think the better button might be, just like we had, It is the 
economy, stupid; it should probably be, It is the Constitution, 
stupid. But maybe I will put some money together and get some 
of those buttons done real quick.
    But, you know, I am concerned about the balance of power. I 
am concerned about separation of powers, because I do think 
that this is a constitutional issue. And I really do thank 
everyone for coming today, particularly you, Ms. Alvarez, 
because, obviously, you have traveled a long distance. You come 
from my home State. You are from La Rosita. I am from Palito 
Blanco, which is between Alice and Kingsville. I, too, grew up 
on a farm. And I don't recall--you know, although I am not next 
to the border, I am close enough that I can tell you that any 
time we always got concerned and we always knew when somebody 
crossed over our farm because there would either be a fence 
that was unlocked or some footprints. There would be some sign 
that somebody had traversed our property. And I know that you 
are concerned.
    So tell me, again, you have not seen or know of any rapists 
or murderers or drug dealers or human traffickers, or any, you 
know, people trying to do harm to anyone around your property, 
or any of your neighbors' properties?
    Ms. Alvarez. Not at all, ma'am.
    Ms. Garcia. And have you had a chance to visit with any of 
the property owners adjoining you to see if they share in your 
concern about what this proposed wall might be doing to your--
your farm and your livelihood?
    Ms. Alvarez. Yes, ma'am. I will say, I can speak for my 
community. Most of my community is made up of elders who are 
not very familiar with the issue. They have been actually 
threatened at one point or another to sign over documents and 
stuff or else their properties will be taken away.
    Mind you, we people in Starr County--and I can speak for 
myself and for my area--we do not want this wall, and we do not 
see a crisis, especially rapists, gang members, or an invasion.
    Ms. Garcia. Right. And are you the only party in this 
lawsuit, or is there a number of other parties in the lawsuit 
that you mentioned? I am not familiar with it. I just----
    Ms. Alvarez. There is a few other parties.
    Ms. Garcia. There is a few other parties. Well, in your 
opinion because you are down there, I mean, do you see a crisis 
as something that is, as one of my colleagues has described, of 
grave concern, a change, or something that may be endangering 
to your area?
    Ms. Alvarez. Not at all.
    Ms. Garcia. Not at all. Well, thank you, again, for coming. 
I know it is a long distance.
    And, Mr. Gerson, I wanted to first tell you that I think El 
Paso County is in good hands, and I wonder if you had reviewed 
or had listened to the recommendations that Ms. Goitein put 
forth in her opening statement and had any reaction to her 
recommendations, or do you have any other recommendations that 
we should consider?
    Mr. Gerson. Well, I suggested earlier that I would start 
with the definition. But as to Ms. Goitein's views, I have read 
her testimony, I find it edifying. I mean, you have noticed 
that the range of disagreement here is very small----
    Ms. Garcia. Well----
    Mr. Gerson [continuing]. In terms of what your legislative 
purpose is going to be. So I would--I would recommend 
considering all--all of those things. None of this--none of 
what you ultimately have to do deals with the lawsuits or other 
things that are going to be determined elsewhere, but you will 
have a chance to write meaningful law.
    As I say, I am someone who normally, in--in my own 
political life, supports conservative judges because they read 
the law, that they are textualists, that they don't--that they 
don't make it up, that they are originalists in terms of 
constitutional interpretation. I carry that through to this, 
and much of my criticism, it has to lay at the feet of the 
Congress, which has abdicated responsibilities that it has.
    I know from long history of dealing with this body that 
oftentimes things are left contradictory or unstated, so that 
the law itself gets passed, so that somehow 11th hour agreement 
is reached. That is a bad policy to follow, whether--whether 
you are talking about who is covered by the Civil Rights Act, 
which is constantly being litigated, or anything else. And so I 
think it is fair to say that there is pretty great agreement in 
this room that there has been an erosion of congressional 
power, as I suggested earlier. Too often, the Congress acts 
like a Parliament. That is not what it was set up to do. 
Indeed, it was set up to be something else. Because there was a 
Parliament that allowed a king to act in an arbitrary way, we 
fought and won a revolution.
    Ms. Garcia. What--what do you think about this whole notion 
of time limits, whether it is a termination period or a come 
back and get extended, or any of those other options that have 
been mentioned?
    Mr. Gerson. Well, I said to Mr. Nadler earlier on that--
that the concept--that you ought to address the question of 
time limits, but recognize that it is inherently problematic, 
that you have got to play it out, because time limits expire, 
and what do you do when they do expire and no definitive action 
has been taken? You have got to play that through when you 
decide what to do, and you are not doing it just for yourself. 
You are doing it for future Congresses. You are doing it for 
future administrations that might be of a different party than 
you are. So you have to think about the country, and you have 
to think about policy, and as I say, you need to be wise.
    Ms. Garcia. Okay, thank you. I think my time is up, and I 
yield back.
    Mr. Cohen. Thank you, ma'am. I now recognize Judge Gohmert 
from Texas.
    Mr. Gohmert. Thank you. Appreciate the witnesses being 
here. Reading earlier, an article quoting from Washington Post 
and so many of--ABC, NBC--repeatedly calling what is going on 
on the border, a crisis, constantly using the word C, the 
crisis word. But then again, that was when President Obama was 
in office. And now that he is not in office, those same 
medium--media are now saying, oh, there is no crisis.
    I know there are some that have said the numbers are down 
last year, but if you look at October, November, December, 
January, as we had testimony from that very table earlier this 
week, it used to be 80 percent adult males coming into the 
country looking for jobs, from Mexico, and now it is a huge 
majority of family units, or alleged family units bringing 
children because they know if they bring children, they are 
going to be allowed to stay here.
    From the nights--and I certainly appreciate testimony from 
anybody that lives there, but of all the nights I have spent 
all night on the border, I have seen a crisis. And the crisis 
doesn't stop when the Homeland Security takes over as some of 
the Border Patrol have related to me. The drug cartels call us 
their logistics. And I said like the commercial--the drug 
cartels get them illegally into the country, and then they 
often provide an address or a contact in the city where the 
drug cartels are going to allow them to work off the rest of 
the money they owe the cartels. And then Homeland Security 
would ship them to those locations.
    So it shouldn't have been any surprise, people in the last 
week or so, there was a massive bust in one of our biggest 
cities, drug cartel meth lab. When you see a rape tree, you see 
multiple rape trees, signifying this is where we have raped 
women, I guess it is all in whose view, but I would think that 
the women felt like it was a crisis.
    But I have been very concerned about the power we have 
given up here in Congress, concerned about that during the Bush 
administration, the Obama administration, and I thought it was 
a terrible time to give up, specifically, legislating 
appropriations. Some call them earmarks. Earmarks, if they are 
self-serving, they are an abomination, but if it is legislature 
specifically saying this is where you spend the money, it is a 
good--normally, a good thing for a Congress to do. And we 
haven't been doing that for a long time.
    So when the National Emergency Act was passed, it did, 
indeed, give up tremendous amount of power that Congress, I 
don't think, should have given up. But I know you are aware--I 
mean, when we talk about maybe a time limit, looks like the 
Obama administration has 11 of their emergency declarations 
still going on.
    Professor Turley, whether I agree or disagree with you, I 
always appreciate your consistency and integrity. And you made 
the comment that, first and foremost, a court is unlikely to do 
for Congress what Congress will not do for itself, and it 
reminded me of a comment my friend Justice Scalia said when I 
asked him about something, not specific because they don't give 
advisory opinions. He said, Look, if you guys in Congress are 
not willing to do your job, don't come running over to our 
court wanting us to do it for you.
    And I think that you put it more succinctly, but that would 
seem to be--I mean whether--even though we have given up all 
this power, Professor Turley, it looks like the courts have 
been pretty consistent in saying, Yeah, you gave it up, but it 
is your job, not ours. Do you know of any cases of courts of 
appeal, other than, maybe, a Ninth Circuit that have said 
otherwise?
    Mr. Turley. No. In fact, in the--in the testimony I talk 
about a couple of cases that strongly militate in the opposite 
direction. One was actually a decision, I believe, by Justice 
Breyer, when he was on the Court of Appeals, called Deacon, 
where he looked at this issue of the loss, expressly stating 
that the Congress has to get together every 6 months. And an 
emergency was challenged by someone that said, look, you 
haven't gotten together and satisfied that part of the statute, 
so this emergency must be invalid.
    Now, just look at that for a second. This, in comparison 
with the rest of the Act, that provision is the model of 
clarity. It says, 6 months, you must get together and make a 
decision, or deliberate on this emergency. Even that, the court 
said, is not going to be binding under the statute. So what you 
are going to ask a court to do is to go deeply into a policy 
judgment of what constitutes an emergency, and you are going to 
have to do that after the Supreme Court just ruled in favor of 
the administration on its immigration orders, and said that 
there was not a likelihood of prevailing in that case, because 
the President has such tremendous deference at the border. I 
don't consider that a winning hand. I don't consider that a 
hand of any kind, to go to court with.
    Mr. Gohmert. Thank you.
    And, Mr. Chairman, I would just submit, I would be glad to 
work with anybody on your side to try to limit the National 
Emergency Act, but I do think it is our job. Thank you, I yield 
back.
    Mr. Cohen. Thank you, Judge. I think we--I appreciate your 
coming to the hearing, and the previous time we have been here, 
we have seen a lot of unanimity that this needs to be something 
that could happen, and so maybe we will have a bipartisan 
result to this.
    Ms. Escobar is next, and we appreciate your--your 
constituent and your lawyer.
    Ms. Escobar. I do, too. Thank you, Mr. Chairman, and many 
thanks to our panel.
    Mr. Gerson, thank you, especially, for representing the 
great County of El Paso.
    For context, let me tell all of you about my community. I 
am from El Paso, Texas, the beautiful, vibrant, new Ellis 
Island, which is on the U.S./Mexico border. With absolutely 
sincerity, I invite all of you, every member of this Judiciary 
Committee, to come visit. Please allow me the opportunity to 
give you a tour of our border.
    I am a proud fronteriza, a woman of the border. My family 
has lived there for over 100 years, so I can speak with some 
authority on this issue. I can assure you, we have never been 
safer or more secure. While we have a wall in El Paso, we were 
safe long before it was ever constructed. And the question is, 
why have we been so safe? Well, there is three factors that I 
can point to quickly--community policing by local law 
enforcement, a significant Federal law-enforcement presence, 
and most importantly, I believe, the fact that immigrant 
communities are among the safest in the Nation.
    Our immigrant community is made up of one-quarter 
immigrants, and we have multigenerational roots in the region. 
El Paso is not unique in this way. Most of our southern border 
communities are just like this. And Mr. Johnson, we do face a 
challenge. I agree with you on that, you are right. And you are 
right when you say that we should be introspective about these 
issues in order to find real solutions.
    So the drug issue, which is one of the issues cited for the 
wall, is not a new issue. We know it is not a new issue. Our 
country has long had an insatiable appetite for illegal drugs.
    The other reason cited--and this seems to be the one most 
discussed by my colleagues--is the thousands of central 
American asylum seekers arriving every day at our doorstep. 
This, too, is not new. We first saw this phenomenon in 2014. 
Central American unaccompanied minors and families have been 
running from crushing poverty, violence, and persecution for 
nearly 5 years now.
    What happens is that they come in what is called a surge. 
This is the fourth surge in 5 years. Mr. Gohmert just mentioned 
that the 2014 surge was called a crisis by members of the 
media. Yes, it was the members of the media, not by those of us 
on the U.S./Mexico border. In fact, I just had Jacqueline print 
out a piece that I wrote and published for The New York Times 
about this very surge in 2014, called, Why the Border Crisis is 
a Myth. This was published on July 25th, 2014.
    Mr. Chairman, I ask unanimous consent to enter this into 
the record.
    Mr. Cohen. Without objection, it will be done.
    [The information follows:]
      

                  MS. ESCOBAR FOR THE OFFICIAL RECORD

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    Ms. Escobar. The question we should be asking, is, why 
hasn't the Department of Homeland Security, which has received 
massive Federal investment, been strategic or nimble enough to 
deal with each successive surge? Especially when we are in year 
number five.
    I am not afraid of these families arriving at my doorstep. 
I live in El Paso. What I am afraid of is the willingness I 
have seen by some to ignore the responsibility we have as a 
coequal branch of government. I am afraid of the amount of 
money that this nonemergency will be stealing from military 
families, who were promised badly needed day cares and schools.
    In my district, I am afraid this nonemergency will steal, 
or could steal, up to $275 million from Ft. Bliss, one of this 
country's most important assets, money that is being taken from 
our troops to fund a political prop. This obsession with a 
wall, which will be funded at the expense of our military, is 
heartbreaking to me.
    The day before yesterday, one of my colleagues on the House 
floor said that we are a Nation at war. We are not at war. Yet, 
in my community, barricades with concertina wire are being put 
up at our ports of entry. Starting this week, the return-to-
Mexico policy will be implemented. We are turning away asylum 
seekers at our ports. We are driving them to places that are 
more treacherous and dangerous. That is the crisis, and that is 
a man-made crisis. That one is easily solvable.
    If we truly want to get to the bottom of this surge, then 
we need to do the hard work necessary to work with the Northern 
Triangle to address the challenges, some of which we have 
created.
    I shared that with you, Mr. Johnson. We have had a hand in 
driving people out of their homes from Central America. We have 
an obligation to solve this in a compassionate, humanitarian 
way, but, again, this is not new, this is not an emergency.
    I know my time is up. And if I had just a couple of more 
seconds, I would ask our landowner, Ms. Alvarez, everything 
that you have had to endure as an American property owner at 
the hands of this government. You have obviously had to hire 
lawyers. You have had to fly to Washington, D.C. to defend your 
property. I am very curious about what this government is 
putting you through.
    Ms. Alvarez. This government has created a loss of family 
members, a loss of friendships, a division amongst us in our 
communities, because, you know, people agree and disagree, mind 
you, over an issue that I strongly disbelieve in. There is no 
crisis. These people, like you said, are in the ports of entry, 
trying to create--come in, with every lawful right, because 
they do have a right to claim political asylum. But somewhere, 
someone has created hate towards these people. We are at a 
record low of entries right now, even though the numbers are so 
high, because the media has put it out there. Yet, why do we as 
a community have to pay for someone who wants to put up a 
barrier, a wall or so, that is not going to work, and that has 
been proven not to work? I am here--I have been going through a 
lot, but I am here and I am here to fight this.
    And I agree with a lot of things. Things need to change. We 
need to change immigration reform. We need to change parts of 
what the Constitution is there, so we do not create loopholes 
where people take advantage of them and we are in this 
situation that we are in.
    Ms. Escobar. Thank you.
    Mr. Cohen. Thank you, Ms. Escobar.
    Ms. Dean, you are recognized, and thank you for deferring.
    Ms. Dean. Thank you. Thank you, Mr. Chair. Thank you for 
the opportunity that you are giving our committee to examine 
and address the gross overreach by the executive branch. The 
President has already identified $8.1 billion in 
congressionally appropriated funds that he plans to take in 
order to build his ineffective wall which he promised Mexico 
would pay for.
    In my home State of Pennsylvania alone, we have identified 
more than $165 million in military projects that could be on 
the chopping block and at risk. It is an irony that the 
protection of our Homeland Security, which the President 
professes to, he is actually going to harm. He is harming our 
military.
    I also want to reiterate the findings of 58 former national 
security officials who condemned the President's emergency 
declaration, and stated that any redirection of funds will, 
quote, ``undermine U.S. national security and foreign policy 
interests.''
    Mr. Chairman, if it is all right with you, under unanimous 
consent, I would offer this report into the record.
    Mr. Cohen. Without objection, so done.
    [The information follows:]
      

                    MS. DEAN FOR THE OFFICIAL RECORD

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    Ms. Dean. It is signed by such people from both sides of 
the aisle with decades of leadership experience in bipartisan, 
different administrations such, as Madeleine Albright, James 
Clapper, Samantha Powers, Leon Panetta, Susan Rice, just to 
name a few. And here are just a few of their important 
findings. And it will be entered into the record.
    Illegal border crossings are at nearly 40-year lows. There 
is no documented terrorist or national-security emergency at 
the southern border. There is no emergency related to violent 
crime at the southern border. There is no human or drug-
trafficking emergency that can be addressed by a wall at the 
southern border.
    And I won't go on, but you know the other, very substantive 
findings. But I will end on a final one. There is no basis for 
circumventing the appropriations process with a declaration of 
national emergency on the southern border.
    So I would like to ask the question--and, Mr. Gerson, I 
will pivot to you if I can--specifically, the President cited 
10 U.S.C. 2808 in his proclamation which, quote, ``requires the 
use of armed forces,'' end quote, and allows for the taking of 
funds that, quote, ``have been appropriated for military 
construction.''
    Can you please explain why these two requirements in 2808 
do not apply to this proclamation, and also, if you could 
speculate, and importantly, substantively speculate on the 
impact that these takings will have on readiness and morale?
    Mr. Gerson. Well, I am an erstwhile Pennsylvanian, and 
military veteran, so perhaps I have some useful knowledge 
there, but that is not why I am here. But I will address it if 
you would like. The issue that we face, that you just 
described, is something I talked about earlier, and you are, in 
essence, paraphrasing something that I and Professor Tribe and 
the lawyers at Willkie Farr who have helped us, have said in 
our briefs. It is one of the reasons why, as I said to Mr. 
Raskin earlier, if there is a constitutional-avoidance issue 
here, that we can win on statutory grounds.
    Funds that are--that are appropriated for a specific 
purpose, pursuant to law as to what they are, should not be 
held to be flexible, but, again, the point is, that this whole 
thing can be defeated irrespective of any discussion of that, 
because there ain't no emergency. You know, this is the reverse 
of things. You know, if it doesn't look like a duck, if it 
doesn't walk like a duck, if it doesn't quack, it might be a 
hippopotamus, but it isn't a duck.
    And it is your job to define this law. I mean, I am very 
appreciative of the remarks that are made by the people who 
live on the border. My son's godfather's name is Susano Ortiz. 
He described himself as a wetback, who made good under the name 
of George Ortiz as he moved from Texas to California. I am 
conscious of these--of these issues.
    But as I said, I would be here making the argument that I 
made even if I agreed fully with the President as to the--as to 
the need for the wall. There is nothing illegal about your 
appropriating money to do that. The problem here arises because 
you specifically declined to give him what he asked for. It is 
no implication. You didn't do it.
    And as I say, I think, as I said at the outset, that I am 
making a fundamentally conservative point. Plenty of 
conservatives agree with me. As you know from my descriptions 
in the documents here, that I am affiliated with people well on 
the--to the right of center and way to the right of you, and 
that is okay. What you have heard here and the thing that I 
hope to take away from this, and I hope that all of you take 
away from this, is the high level of agreement as to how you 
ought to be exercising the autonomy that some good 
conservatives like James Madison have bequeathed to you.
    Ms. Dean. Mr. Chairman, if you would allow me, I know my 
time has expired, but just a couple of seconds to compliment 
Mr. Gerson, a fellow Pennsylvanian. I used to teach writing at 
La Salle University in Philadelphia for 10 years. So I so 
appreciate your plain English when you say, ``There ain't no 
emergency.'' Thank you, Mr. Gerson.
    Mr. Cohen. Thank you. We have, and with unanimous consent, 
will enter into the record the following materials: A cover 
letter and three articles by Professor Ilia Soman; a statement 
by the Constitution Project at the project on government 
oversight opposing Trump's declaration of a national emergency; 
a letter from former GOP lawmakers also opposing the emergency 
declaration; an article by Elizabeth Goitein, I think, and the 
Atlantic, which was the article that spurred my interest in 
this and kind of set the ball rolling; and an article by David 
French in the National Review. Without objection, so entered.
    [The information follows:]
      

                   MR. COHEN FOR THE OFFICIAL RECORD

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    Mr. Cohen. I want to thank the members of the panel, our 
witnesses. Y'all were a great panel. I think in all my--this is 
my 13th year in Congress--I haven't had a better panel that 
discussed the issues and probably brought the two sides 
together. I think we hopefully will have some legislation as a 
result of this hearing, and so I think it was very productive 
and very worthwhile.
    Ms. Alvarez, you are most appreciated for coming here. Very 
few people have been amongst such legal talent, and you have 
been a star here as a citizen telling us about the situation on 
the border, and I thank you for that. So I thank our witnesses.
    Without objection, all members have five legislative days 
to submit additional written questions for the witnesses and 
additional materials for the record. And I also want to thank 
C-SPAN, because this was better than Michael Cohen.
    This hearing is adjourned.
    [Whereupon, at 2:22 p.m., the subcommittee was adjourned.]

                                  [all]