    [House Hearing, 117 Congress]
    [From the U.S. Government Publishing Office]

                         EXAMINING POTENTIAL REFORMS OF
                                EMERGENCY POWERS

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

                                    HEARING

                                   BEFORE THE

                  SUBCOMMITTEE ON THE CONSTITUTION, CIVIL
                           RIGHTS, AND CIVIL LIBERTIES

                                     OF THE

                           COMMITTEE ON THE JUDICIARY

                         U.S. HOUSE OF REPRESENTATIVES

                        ONE HUNDRED SEVENTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                             TUESDAY, MAY 17, 2022

                                   __________

                               Serial No. 117-66

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                   Available via: http://judiciary.house.gov

                                  __________

                        U.S. GOVERNMENT PUBLISHING OFFICE
    48-306                     WASHINGTON : 2022

    -----------------------------------------------------------------------------------

                           COMMITTEE ON THE JUDICIARY

                        JERROLD NADLER, New York, Chair
                    MADELEINE DEAN, Pennsylvania, Vice-Chair

    ZOE LOFGREN, California              JIM JORDAN, Ohio, Ranking Member
    SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
    STEVE COHEN, Tennessee               LOUIE GOHMERT, Texas
    HENRY C. ``HANK'' JOHNSON, Jr.,      DARRELL ISSA, California
        Georgia                          KEN BUCK, Colorado
    THEODORE E. DEUTCH, Florida          MATT GAETZ, Florida
    KAREN BASS, California               MIKE JOHNSON, Louisiana
    HAKEEM S. JEFFRIES, New York         ANDY BIGGS, Arizona
    DAVID N. CICILLINE, Rhode Island     TOM McCLINTOCK, California
    ERIC SWALWELL, California            W. GREG STEUBE, Florida
    TED LIEU, California                 TOM TIFFANY, Wisconsin
    JAMIE RASKIN, Maryland               THOMAS MASSIE, Kentucky
    PRAMILA JAYAPAL, Washington          CHIP ROY, Texas
    VAL BUTLER DEMINGS, Florida          DAN BISHOP, North Carolina
    J. LUIS CORREA, California           MICHELLE FISCHBACH, Minnesota
    MARY GAY SCANLON, Pennsylvania       VICTORIA SPARTZ, Indiana
    SYLVIA R. GARCIA, Texas              SCOTT FITZGERALD, Wisconsin
    JOE NEGUSE, Colorado                 CLIFF BENTZ, Oregon
    LUCY McBATH, Georgia                 BURGESS OWENS, Utah
    GREG STANTON, Arizona
    VERONICA ESCOBAR, Texas
    MONDAIRE JONES, New York
    DEBORAH ROSS, North Carolina
    CORI BUSH, Missouri

              AMY RUTKIN, Majority Staff Director & Chief of Staff
                  CHRISTOPHER HIXON, Minority Staff Director
                                     ------

                SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS,
                              AND CIVIL LIBERTIES

                         STEVE COHEN, Tennessee, Chair
                    DEBORAH ROSS, North Carolina, Vice-Chair

    JAMIE RASKIN, Maryland               MIKE JOHNSON, Louisiana, Ranking
    HENRY C. ``HANK'' JOHNSON, Jr.,          Member
        Georgia                          TOM McCLINTOCK, California
    SYLVIA R. GARCIA, Texas              CHIP ROY, Texas
    CORI BUSH, Missouri                  MICHELLE FISCHBACH, Minnesota
    SHEILA JACKSON LEE, Texas            BURGESS OWENS, Utah

                           JAMES PARK, Chief Counsel

                                C O N T E N T S

                                  ----------

                             Tuesday, May 17, 2022

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Steve Cohen, Chair of the Subcommittee on the
      Constitution, Civil Rights, and Civil Liberties from the State
      of Tennessee...................................................     2
    The Honorable Mike Johnson, Ranking Member of the Subcommittee on
      the Constitution, Civil Rights, and Civil Liberties from the
      State of Louisiana.............................................     3
    A statement from the Honorable Jerrold Nadler, Chair of the
      Committee on the Judiciary from the State of New York, for the
      record
      Prepared Testimony.............................................     8

                                   WITNESSES

    Ms. Elizabeth Goitein, Director, Liberty and National Security,
      Brennan Center for Justice
      Oral Testimony.................................................    10
      Prepared Testimony.............................................    13
    Mr. Soren Dayton, Policy Advocate, Protect Democracy
      Oral Testimony.................................................    37
      Prepared Testimony.............................................    39
    Mr. GianCarlo Canaparo, Senior Legal Fellow, Meese Center, The
      Heritage Foundation
      Oral Testimony.................................................    47
      Prepared Testimony.............................................    49
    Mr. Joel W. McClearly, Managing Partner, Four Seasons Ventures
      LLC; Co-founder, Keep Our Republic
      Oral Testimony.................................................    58
      Prepared Testimony.............................................    61

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Materials submitted by the Honorable Steve Cohen, Chair of the
      Subcommittee on the Constitution, Civil Rights, and Civil
      Liberties from the State of Tennessee, for the record
      A paper entitled, ``Up Against the Wall: Congressional
        Retention of the Spending Power in Times of `Emergency,' ''
        Loyola University Chicago Law Journal........................    68
      A letter from 7 organizations in support of reforming the
        National Emergencies Act.....................................   121

                         EXAMINING POTENTIAL REFORMS OF
                                EMERGENCY POWERS

                                  ----------

                             Tuesday, May 17, 2022

                         U.S. 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 9:33 a.m., in
    Room 2141, Rayburn House Office Building, Hon. Steve Cohen
    [Chair of the Subcommittee] presiding.
        Members present: Representatives Cohen, Ross, Johnson of
    Georgia, Jackson Lee, Jordan, Johnson of Louisiana, McClintock,
    Roy, and Fischbach.
        Staff present: Aaron Hiller, Chief Counsel and Deputy Staff
    Director; David Greengrass, Senior Counsel; Moh Sharma,
    Director of Member Services and Outreach & Policy Advisor;
    Cierra Fontenot, Chief Clerk; John Williams, Parliamentarian
    and Senior Counsel; Gabriel Barnett, Staff Assistant; Merrick
    Nelson, Digital Director; James Park, Chief Counsel for
    Constitution; Agbeko Petty, Counsel for Constitution; Will
    Emmons, Professional Staff Member/Legislative Aide for
    Constitution; Ella Yates, Minority Member Services Director;
    James Lesinski, Minority Senior Counsel; and Kiley Bidelman,
    Minority Clerk.
        Mr. Cohen. The Committee on the Judiciary Subcommittee on
    the Constitution, Civil Rights, and Civil Rights will come to
    order. Without objection, the Chair is authorized to declare a
    recess of the Subcommittee at any time.
        I welcome everyone to today's hearing on examining
    potential reforms of emergency powers, a very serious topic
    which we have explored in the past and will explore again.
        We have established an email address and distribution list
    dedicated to circulating exhibits and other written materials
    and motions the Members might use today. Send them to the email
    address, if you would like to do so, that we have previously
    shared, and they will be distributed.
        Finally, all Members and Witnesses should mute their
    microphones when you are not speaking. This will help prevent
    feedback, other technical issues, and you saying things you
    don't want to have heard. You may unmute yourself at any time
    when you seek recognition.
        I now recognize myself for an opening statement. It was
    fitting that our first hearing under my Chairmanship of this
    Subcommittee which was in February of 2019, was on the National
    Emergencies Act of 1976 and its implications for one of the
    core tenets of the Constitution's design, namely a governmental
    structure defined by checks and balances, and the separation of
    power, nothing more fundamental in our system.
        The specific impetus for that previous hearing was then
    President Trump's attempt to invoke emergency powers to divert
    billions of dollars in military construction funds to build a
    border wall. We heard a number of broader and bipartisan
    concerns about the National Emergencies Act and Congress'
    delegation of emergency authority to the Executive.
        The National Emergencies Act was enacted in 1976 to
    constrain the use of Presidential Emergency authorities. It
    does not give the President any particular powers, but it sets
    forth the process he has to follow if he declares an emergency
    in the process that we in Congress have to follow if we want
    the emergency to end, the access out of procedural framework
    only, and does not define what is an emergency.
        Congress passed the National Emergencies Act during a
    period of post-Watergate reforms after it became increasing
    concerned that Presidential Emergency powers were becoming
    unwieldy and overextended. Before 1976, no statutory procedures
    existed for the Presidential Declaration of National Emergency
    and Congress had no defined supervisory role in the checks and
    balances portion.
        It was the response and abuses of the Nixon era that the
    Senate created the 1973 Special Committee on the Termination of
    the National Emergency, renamed, excused me, the Special
    Committee on National Emergencies and Delegated Emergency
    Powers in 1974 which was Co-Chaired by the Honorable Senators
    Frank Church and Charles Mathias. The Special Committee issued
    its final report in 1976 emphasizing that emergency laws and
    procedures in the United States have been neglected for too
    long and that Congress must pass the National Emergencies Act
    to end the potentially dangerous situations. It was against
    this backdrop that Congress passed that Act in 1976. That was
    48 years ago.
        Since that time, the National Emergencies Act's
    shortcomings have come into view. For instance, one of the
    concerns we heard at our 2019 hearing about the limitations of
    the Act included the fact that there is little in the Act that
    would prevent Presidents from doing emergencies in perpetuity.
    The only mechanism that Congress has for ending an emergency
    without the support of the President is through a joint
    resolution of Congress which requires the President's signature
    and is subject to a veto.
        The Act also does not require that any statutory powers
    invoked by a President relate to the nature of the emergency.
    In other words, the President could exercise numerous powers
    upon issuing an emergency declaration even if those powers have
    nothing to do with the declared emergency.
        Exacerbating these concerns is the fact that as many
    scholars and commentators point out, Congress has almost lost
    track of how many underlying laws exist that grant the
    President emergency authorities or whether these grants of
    emergency authority remain warranted.
        Our Witnesses will describe what 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 about a different claim of emergency authority, they
    ``lie about like a loaded weapon.''
        In the three years since our previous hearing, Members on
    both sides of the aisle and in both houses, has introduced
    legislation to address the potential for the President to
    address these weapons. Broadly speaking, these measures would
    amend the National Emergencies Act to place more effective
    guardrails on a President's ability to invoke emergency powers
    and would reassert Congress' rightful place to check on what
    would otherwise be almost unfettered executive authority.
        For example, title 5, subtitle C of the Protecting our
    Democracies Act, would amend the National Emergencies Act to
    among other things, empower Congress to proactively approve a
    Presidentially-declared National Emergency. Requiring a
    National Emergency declaration to expire after 20 legislative
    days absent congressional assent. It would also require that
    any emergency powers invoked by the President pursuant to a
    national emergency or relate to the nature of it may be used
    only to address that emergency.
        Other proposals of note include the Article 1 Act,
    legislation introduced by Senators Mike Lee and Representative
    Chip Roy, a Member of our Subcommittee, that would also amend
    the National Emergencies Act to place similar congressional
    guardrails with the President's exercise of emergency
    authority.
        While the House Judiciary Committee no longer has
    legislative jurisdiction over the National Emergencies Act, it
    makes no sense to me whatsoever, but several things around here
    don't. It was this Committee that helped in drafting the act. I
    believe the Judiciary Committee has a continuing obligation to
    ensure that the Act's purpose in seeking to restore proper
    congressional check on the Executive Branch is being met.
        The American people deserve our continued vigilance on this
    matter. They deserve to know that a President cannot rewrite
    the laws to avoid obscure loopholes in an effort to abuse power
    or even to exercise it unnecessarily.
        I look forward to the hearing from our Witnesses today and
    bring a range of perspectives about the issues. I hope we can
    have a productive and fruitful discussion about whether we, as
    Congress, can do more to constrain these types of authorities
    so they are used only in true emergencies and not as end to run
    around the Constitution.
        I thank Mr. McCleary for reinvigorating me on this subject
    and a group that he is Chairing and Ms. Goitein for returning
    to the country and continuing your pursuit of the truth.
        I know recognize the Ranking Member for his opening
    statement, Mr. Johnson of Louisiana for his opening statement.
        Mr. Johnson of Louisiana. Thank you, Mr. Chair. As noted,
    we actually have bipartisan agreement on the importance of this
    issue and those are rare agreements these days, so really
    grateful for this hearing.
        Here is the Republican summary view. The National
    Emergencies Act is the principal framework, of course, through
    which the President exercise emergency authority. As noted,
    passed by Congress in 1976, the NEA was intended to rein in the
    President's use of emergency authority through various
    procedural requirements. Here is the thing that we all know,
    and I suspect there will be broad agreement here today on this
    point that the law has shortcomings, let's put it that way.
        As we all know, the President can only act in our system,
    in our constitutional government, he can only Act with the
    authority vested in him by the Constitution or specifically by
    Congress. The problem here is that Congress has been proven
    quite adept at delegating authority to the President over the
    years. When Congress last accounted for emergency authorities
    delegated to the President in 1973, it found that more than 470
    of such delegations have been given.
        In a report documenting these authorities, the Senate's
    Special Committee on the Termination of National Emergency
    remarked that Congress had ``conferred enough authority to rule
    the country without reference to normal constitutional
    process.'' It is kind of an ominous summary there.
        Today, there are approximately 115-140 such delegations in
    effect, although as the Chair said, ``it is difficult to count
    them sometimes and it depends upon the source that you
    consult.'' Regardless of which number is correct, the
    Presidents have proven to be proficient at declaring
    emergencies. There are currently more than 30 national
    emergencies in effect right now as we speak with the oldest
    dating back to President Jimmy Carter.
        National emergencies are commonly renewed by the President
    and Congress rarely passes the joint resolution necessary to
    terminate them. So, although the NEA was intended to end
    perpetual States of Emergency, it has actually resulted in
    Presidents freely renewing emergencies sometimes for decades.
    Of course, that seems to defy the common sense and the common
    definition of emergency, right?
        The NEA has proven to be an ineffective check on the
    President and Congress has surrendered its authority to the
    Executive Branch for too long. We can't even say it was a
    usurpation of authority because Congress willingly gave it up.
        Article 1 of the Constitution vests all legislative
    authority in the Congress, and we are obliged to consider how
    to use that authority to more effectively control Presidents'
    use of emergency declarations. The way that political issues
    are framed today is existential threats, incentivizes the
    President to stretch the bounds of their emergency authority to
    accomplish policy goals, and sometimes partisan goals that
    cannot pass the Congress. This is no way for our government to
    function. In a moment when so many of our institutions are
    being imperiled and the people are losing faith in them, I
    think this is something meaningful that we could work on
    together and try to fix. The devil is in the details, of
    course. That is why we are all here today.
        So, I look forward to hearing from our Witnesses and I
    yield back.
        Mr. Cohen. Thank you, Mr. Johnson. Mr. Nadler is not going
    to be with us right now and he wants his statement entered in
    the report which he has given us and without objection it will
    be done. I understand that Mr. Jordan does not have a
    statement, so at that point we will proceed go to our
    Witnesses.
        [The information follows:]

                           MR. NADLER FOR THE RECORD

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

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        We welcome our Witnesses and thank them for participating
    in today's hearing. I will now introduce each of the Witnesses
    and after each introduction will recognize that Witness for his
    or her oral testimony. Each of your written statements are
    entered in the record entirety and you have five minutes, and
    you know the five-minute rule. The green lights, red, green go;
    red, you are over; and yellow, your last minute.
        Before proceeding with testimony, I would like to remind
    all our Witnesses that you are under oath to tell the truth. We
    don't make you stand up and swear to anybody or anything. We
    just want you to know that if you don't tell the truth, you are
    going to be taken to the slammer.
        Our first Witness is Elizabeth Goitein. Ms. Goitein co-
    directs the Brennan Center for Justice's Liberty & National
    Security Program and is a Senior Practitioner Fellow at the
    University of Chicago's Center for Effective Government. She is
    a nationally recognized expert on Presidential Emergency
    Powers, government surveillance, and government secrecy. I
    think she cares about this as much as I care about the Memphis
    Grizzlies, which is a lot.
        She testified before this Subcommittee in February of 2019
    about the National Emergencies Act. Prior to joining the
    Brennan Center, she served as counsel to Senator Feingold,
    Chair of the Constitution Subcommittee of the Senate Judiciary
    Committee and as trial attorney in the Federal Programs Branch
    of the Civil Division of the Department of Justice.
        She received her law degree from Yale. A law clerk to the
    Honorable Michael Daly Hawkins to the U.S. Court of Appeals for
    the Ninth Circuit.
        Welcome back, and you are recognized for five minutes.

                     STATEMENT OF ELIZABETH GOITEIN

        Ms. Goitein. Good morning, Chair Cohen, Ranking Member
    Johnson, and Members of the Committee. Thank you for this
    opportunity to testify.
        The legal framework for emergency powers in this country is
    in urgent need of reform, grants the President sweeping powers,
    some of which seem like the stuff of autocratic regimes with
    few safeguards against abuse. Fortunately, Congress has a ready
    way to build a meaningful check into the system.
        Let me back up and explain what emergency powers are and
    how they work. Emergency powers have existed in countries
    around the world for hundreds of years. The theory behind them
    is simple. Because emergencies are by definition unforeseen and
    unforeseeable, the powers conferred on the government by
    existing laws might not be sufficient to address them. Amending
    the law to provide greater powers might take too long and might
    do damage to principles that are held sacrosanct in ordinary
    times.
        Emergency powers thus authorize a limited departure from
    the legal norm. Their purpose is to give the President a
    temporary boost in power until the emergency passes or until
    there is time to change the law through the normal political
    process. Most countries have emergency powers written into
    their constitutions. Our Constitution is an outlier. It does
    not give the President any explicit emergency powers. So,
    Presidents have, for the most part, relied on Congress to
    provide them. There are exceptions that I hope we will have
    time later in the hearing to talk about, Presidential claims of
    inherent emergency powers.
        In any event, for the past century, we have had a system in
    place where the President can declare a national emergency and
    that declaration triggers special powers contained in a whole
    range of laws, all which say something like in a national
    emergency, the President can do X.
        For several decades though, there is no overarching statute
    governing the system. Presidents didn't have to disclose what
    powers they were invoking. They didn't have to report to
    Congress and there was no limit on how long emergency
    declarations could last.
        Congress passed the National Emergencies Act in 1976 to
    rein in Presidential power. It attempted to do this in three
    main ways.
        First, it provided that emergency declarations would end
    after a year unless the President renewed them.
        Second, it allowed Congress at any time to terminate an
    emergency declaration using a legislative veto, a law that
    would go into effect without the President's signature.
        Third, it required Congress to meet every six months while
    an emergency was in effect to consider a vote on termination.
        By any measure, the National Emergencies Act has failed to
    achieve its purpose. Expiration of emergency declarations after
    one year which was supposed to be the default, has become the
    rare exception. We actually have 41 national emergency
    declarations in place today and most of them have been in place
    for over a decade.
        In 1983, the Supreme Court held that legislative vetoes are
    unconstitutional. So, today, Congress effectively needs a two-
    thirds super majority to end the emergency declaration over the
    President's likely veto. Finally, for more than 40 years,
    Congress completely ignored the requirement to periodically
    review existing emergencies.
        Why should this worry us? Because an emergency declaration
    unlocks powers contained in more than 120 statutory provisions
    and some of those carry enormous potential for abuse. For
    instance, there is a law that allows the President to take over
    or shut down radio or wire communications facilities. It was
    last invoked during World War II, when wire communications
    meant telephone calls and telegrams and most Americans didn't
    own a telephone. Today, it could arguably be used to assert
    control over U.S.-based internet traffic.
        Other laws would allow the President to freeze Americans'
    assets with no judicial process, to coordinate and control
    domestic transportation, and even to suspend the prohibition on
    government testing of chemical and biological agents on
    unwitting human subjects.
        Even how potent these authorities are, it is remarkable
    that there hasn't been more abuse. We have been lucky. It would
    be irresponsible to continue relying on luck and presidential
    self-restraint. Congress should pass legislation to restore its
    role as a meaningful check on these powers.
        There are several bills pending before Congress right now
    broadly supported by Democrats and Republicans that would
    require Presidential Emergency Declarations to terminate after
    30 days unless approved by Congress using expedited procedures
    that would prevent obstructionism. This simple, common-sense
    measure would give Presidents the powers they need when they
    most need them, flexibility in the immediate aftermath of a
    crisis while still allowing Congress to step in and serve as a
    backstop against Executive abuse and overreach.
        Thank you and I look forward to your questions.
        [The statement of Ms. Goitein follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. Thank you very much. Our next Witness is Mr.
    Soren Dayton. Mr. Dayton is a policy advocate with Protect
    Democracy. He previously worked at Hill & Knowlton Strategies.
    He has also worked on the late Senator John McCain's campaign
    for President and the campaigns for a variety of Republican
    candidates among others. He is on the Board of Advisors of Tech
    Congress and was a Penn Kemble Fellow with National Endowment
    for Democracy.
        He has an A.B. from the University of Chicago, and you are
    recognized for five minutes, sir.

                       STATEMENT OF SOREN DAYTON

        Mr. Dayton. Thank you, Chair Cohen and Ranking Member
    Johnson for inviting me to discuss national emergency powers
    and opportunities for reform. I am here on behalf of Protect
    Democracy which works to strengthen our democratic institutions
    and separation of powers.
        Emergencies present a critical issue of checks and
    balances. In the constitutional balance of powers, Congress has
    the power to make laws and appropriate funds. The President has
    the power to implement laws and spend the money that Congress
    directs.
        In situations of national emergency, Congress rightly gives
    the President and the Executive Branch fairly broad leeway
    because of the need to quickly and to make specific decisions.
    That doesn't mean Congress wants to give the President
    unlimited power. Members of Congress, you still want a say and
    you have an important role in reviewing, supporting, or
    curtailing a President's execution of delegated powers.
        Congress found a solution 50 years ago in the National
    Emergencies Act. The NEA gave the President broad flexibility
    in an emergency but required clear reporting to Congress and
    empowered Congress to call a halt through a legislative veto.
    Any Member of the House or the Senate could ask for a vote to
    block a President's action via a current resolution. That
    system was applied not just to national emergencies, but also
    to war powers and arms sales. That system broke in 1983.
    Supreme Court decision, INS v. Chadha, struck down the
    legislative veto that Congress had relied on putting a stop to
    emergencies when it felt the President had gone too far.
    Without that check, the delegation of emergency powers was
    transformed into something far broader than ever intended. It
    now requires a veto-proof majority in both chambers to override
    Presidential action under emergency powers.
        Indeed, since Chadha, there have been virtually no checks
    on the President's national emergency powers. Typically,
    Members of both parties complain about perceived abuses of
    Executive powers by the President of a different party and more
    recently, this has come to the fore with emergency powers, yet
    increased polarization and congressional gridlock have left
    those actions substantially unchallenged.
        Fortunately, there is a solution to restore proper balance
    of emergency powers. The key reforms are straight forward. The
    President must give a clear declaration of emergency including
    which delegated authorities he plans to invoke. The authorities
    in the declaration would sunset automatically after a short
    period of time and expedited procedures must be put in place to
    allow Congress to extend or terminate those authorities in a
    timely manner. Such reforms would closely model the intent of
    the 1976 National Emergencies Act.
        For many years, these important reforms lay out of reach,
    yet fortunately, Congress now seems ready to assert its
    rightful role regarding emergency declaration. Legislation
    encompassing these key changes now has broad bicameral and
    bipartisan support.
        My written testimony provides greater detail on the context
    for national emergency reforms and recent legislative efforts,
    but I will recap some of the recent milestones here.
        Last December, the House passed a strong reform of the
    National Emergency System as part of the Protecting Our
    Democracy Act. That legislative proposal built on the work in a
    previous Congress including a Republican proposal in the Senate
    that was marked up in Committee in 2019. The House companion to
    that legislation was led by Mr. Roy on this Subcommittee. In
    the Senate, over 30 Democrats have cosponsored bills that
    include national emergency reform. 20 Senate Republicans have
    either cosponsored similar legislation or voted for it in
    Committee. It is clear that there is strong bipartisan
    consensus on this important issue. We have the momentum to
    reclaim congressional authority in national emergencies. It is
    time to get it done.
        Thank you, Chair Cohen, Ranking Member Johnson for calling
    this hearing. I urge you all and Members here to translate that
    support into legislative action and pass national emergency
    reform this year. Thank you. I look forward to questions.
        [The statement of Mr. Dayton follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. Thank you, Mr. Dayton. Our next Witness is Mr.
    GianCarlo Canaparo, Senior Legal Fellow at the Heritage
    Foundation, the Edwin Meese III Center for Legal and Judicial
    Studies. He researches, writes, speaks, testifies on regulatory
    policy, criminal justice policy, the Federal courts, and
    constitutional law.
        His works have appeared in the Harvard Journal of Law and
    Public Policy, the Notre Dame Law Review, the Administrative
    Law Review, and Georgetown Law and Public Policy.
        Prior to joining the Heritage Foundation, he was in private
    practice and served as a law clerk for two years for a Federal
    District Court judge. He received his law degree from
    Georgetown and was editor of the Law Journal there. He has a
    Master's degree in economics from UC-Davis.
        Is Canaparo right or Canaparo?
        Mr. Canaparo. Canaparo.
        Mr. Cohen. Canaparo. You are recognized for five minutes.

                    STATEMENT OF GIANCARLO CANAPARO

        Mr. Canaparo. Thank you. Good morning, Chair Cohen, Ranking
    Member Johnson, and distinguished Members of the Committee.
        The question facing the Committee today is how can Congress
    regain control over the Executive Branch's emergency powers?
    Over the years, Congress has gifted the President vast
    emergency powers that are at his command as soon as he issues
    the magic words national emergency. He can redirect money,
    seize assets, and suspend laws.
        Like two opposing pendulums, Members of both political
    parties swing from celebrating this situation to opposing it
    and back again. Those with a longer view see the need to
    resolve this. They likewise appreciate that any limits that
    Congress imposes on the President's emergency powers are a
    double-edge sword. It will constrain a President of one party
    today and a President of another party tomorrow. The status quo
    is also a double-edged sword granting the President of one
    party today tremendous power and the President of another party
    tomorrow tremendous power. The status quo suffers from the
    added side effects of being constitutionally suspect and ripe
    for abuse. Any set of rules is going to hurt one party and help
    the other, depending on who the President is. Wise leaders
    accept this and strive to create stability over time. The
    unwise, on the other hand, try to exploit the present broken
    system for short term political gain.
        For those who are curious about repairing the present
    system, I offer a few solutions. I approach this starting from
    the Constitution's text and logic. The Constitution by design
    includes no emergency powers clause. The Framers, as Justice
    Robert Jackson once observed, knew what emergencies were, knew
    the pressures they engender for authoritative action, and knew,
    too, how they afford a pretext for usurpation.
        Still, many parts of the Constitution do anticipate
    emergencies: The Army clause, the Treaty clause, the Guarantee
    clause, and of course, the Extraordinary Occasions clause. The
    themes that runs through them all is that Congress, not the
    President, is supposed to take the lead. This makes good sense
    because if the President gets extra powers whenever he decides
    there is an emergency, you might reasonably worry that he will
    go find some useful emergencies. The potential for abuse is
    there. Congress, unfortunately, has created it. Congress can
    fix it.
        As I set out in more detail in my written testimony, I
    offer a few solutions. My solutions are substantive, not
    procedural for a couple of reasons. As my co-Witness here
    mentioned, the procedural limitations are effectively cut off
    by the Supreme Court's decision in INS v. Chadha. Procedural
    solutions were always going to be second best solutions anyway.
    They don't realign us with the underlying constitutional logic
    and as long as that partisan pendulum continues to swing,
    Congress is likely to exercise oversight functions of
    Presidential emergency poweronly when it is controlled by the
    opposite party.
        So, instead, Congress should impose substantive limitations
    on the President's emergency powers. To put it simply, to
    paraphrase my mother, you brought these powers into the world,
    and you can take them out again. How do you establish a
    framework to do that?
        The Constitution provides a guide. It anticipates that
    Congress will take the lead in addressing emergencies. So,
    generally, Congress should do so. Now, that is not to say that
    Congress should give the President no emergency powers.
    Congress should give him such powers only when it is convinced
    that it is incapable of reacting with necessary speed.
        Now, I think this will be a high bar because in the past
    when this country has faced serious crises, whether it was the
    attack on Pearl Harbor or 9/11, Congress has reacted with
    tremendous speed. With that in mind, your first step should be
    to reevaluate all those laws that give the President emergency
    powers and eliminate all but those you believe require a
    speedier reaction than Congress can deliver.
        The second solution is to impose a time limit on all
    emergencies, not longer than two years. Two years, because the
    Constitution's Army clause says that Congress must renew the
    Army's funding every two years without exception. It doesn't
    matter if the country is invaded by a hostile force, the Army's
    funding will run out without Congress' action. If the response
    to an invasion ends after two years without congressional
    action, then no other emergency needs last longer.
        A third solution is to give the President temporary
    emergency powers on a case-by-case basis at his request. Rather
    than create a vast array of powers that the President can
    activate whenever he sees fit, make him come hat in hand, so to
    speak, to you to ask for specific powers narrowly tailored to
    the crisis.
        Again, I provide more detail in my written statement, but
    in the meantime, I welcome your questions and I will stop
    there.
        [The statement of Mr. Canaparo follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. Thank you, sir. Our final Witness is Mr. Joel
    McCleary. He is managing partner of Four Seasons Ventures which
    has conducted in-depth studies for Department of Defense, the
    Department of Homeland Security on biodefense. He studies
    reviewed emergency powers of the President in the event of a
    pandemic or major biologic weapons attack. He is also co-
    founder of the organization Keep our Republic, a non-partisan
    civic action organization dedicated to protecting a republic of
    laws and strengthening the checks and balances of our
    democratic electoral system, although he is testifying today in
    his personal capacity.
        Mr. McCleary works on issues related to Presidential
    emergency powers with the former Ambassador William G. Miller,
    was Staff Director of the Senate Special Committee on National
    Emergencies. He previously served as Deputy Assistant to the
    President during the Carter Administration and accordingly,
    President Carter. A graduate of Harvard University and he is
    recognized for five minutes.

                       STATEMENT OF JOEL McCLEARY

        Mr. McCleary. Chair Cohen, Ranking Member Johnson, and
    distinguished Members of the Subcommittee, thank you for this
    opportunity to testify today.
        I think it's important in this busy town to take a deep
    breath sometimes and drink in the moment that we're in. Really
    today is a historical moment. After 50 years this Committee is
    going to return to an issue that this Congress tried to
    struggle with, the nation tried to struggle with and was unable
    to resolve.
        What provoked the first real analysis of this issue 50
    years ago were three giants, Republican giants of the Senate:
    Senator Baker, Chuck Mathias, and Senator Cooper, who were
    extremely worried about the assumption of powers that President
    Johnson was taking in the administration of the war and in the
    suppression of the anti-war movement and the work that he was
    doing with J. Edgar Hoover.
        So, what's important about the discussion is we're going--
    the origin of the discussion is--was basically bipartisan and
    it was, in fact, driven by the Republican Party, by the giants
    of the Republican Party who were worried at that time period
    about these extraordinary powers. In that context I would like
    to talk for a second about how I got introduced to the first
    part of the issue and then deal with how Miller and others
    tried to deal with it in the Congress.
        My first introduction to the issue was as a young and very
    insignificant Member of the White House staff. I was asked to
    go to Nelson Rockefeller's funeral. We went up on Air Force One
    and I was sitting at the table with Judge Bell, Brzezinski, and
    Carter. My only role really was to carry bags. I got to
    overhear a conversation that's taken me 30 or 40 years to
    really understand, and that conversation is important to
    understand in terms of the powers that a President must have
    and must assume. Then of course the second part of the
    conversation is how do we balance those powers that that
    President must have?
        The conversation I overheard that day was Brzezinski and
    Carter talking about his option--oh, and by the way, the person
    sitting next to us was the gentleman carrying the nuclear
    suitcase. Carter asked Brzezinski how he could buy more minutes
    before he destroyed the planet and launched thousands of
    nuclear weapons? What he didn't want to do was to follow the
    plan that had so appalled President Kennedy when he was first
    introduced to this--was the idea of launching within probably
    8-9 minutes, 3,000 or 4,000 nuclear weapons, and destroying
    life as we know on the earth.
        So, Carter had asked whether we could have a phased in
    escalation so we could determine if there had been an accident
    or if there was some way that we could work with the Soviets to
    scale back. From that became a document called PD-59, which in
    itself became very controversial because Carter and Brzezinski
    maybe overstepped or controversy overstepped their powers in
    determining what the nuclear policy would be. They kept
    tremendous secrecy around it, which is still discussed today.
        So, after that conversation for years I thought about how
    do you ensure that the President has that freedom and how do we
    make sure that it's not encumbered?
        When I left the plane that day I drove into the funeral
    with Judge Bell, who was then Attorney General, and he was a
    wonderful man from Georgia. He said, ``son, do you understand
    what you just heard?'' I said, ``I'm so happy I heard it,'' and
    he said, ``well, you better think about that for a long time.''
    He said, ``but you understand what it means for an assistant to
    the President for political affairs if such an event were to
    unfold?'' I said, ``what's that?'' and he says, ``you're
    irrelevant. So, because we're going to enter into a whole other
    new world.''
        Later, my first cousin was Bill Miller, who was the man
    that was asked to come back to Washington by Senator Cooper, by
    Senator Mathias to deal with these issues. I, yes, I know I'm
    running out of time.
        Mr. Cohen. Your time is extended, such time as you may
    consume.
        Mr. McCleary. Okay. So, Senator Miller was brought back to
    work with the Republican giants of the Senate to figure out how
    they could contain Johnson's powers and then of course Nixon's
    powers, and he was instrumental in writing the legislation that
    we're discussing today.
        Shortly before he died in 2019 he called myself and Mark
    Medish, who is my co-founder of Keep our Republic, and he said,

            I want you guys to write me an op-ed for The New York Times,
            for the Washington Post on the failure of our work 50 years ago
            and to not only articulate why that legislation failed, but the
            issues we must now address.

        We promised to do that. He died before we had the
    opportunity to do it, but he also asked us to pick up this flag
    or this mission and work to try to deal with this issue. That
    was the origin of Keep Our Republic, which is a bipartisan--
    again bipartisan organization that is trying to put together
    the kind of coalition that we had at that time period 50 years
    ago.
        Days before he died, he said--he told me; and I will close
    with this, Joel, ``you're focusing on the statutory powers and
    how to use that vehicle to deal with the abuse that can occur
    with a President.'' He said that is essential and it's very
    essential that the record be complete and that you pass this
    legislation, but you have to understand at the end of day it
    probably will not work. It's important to have that record
    before the courts to see when they make final deliberations
    about the inherent powers of the President. I'd like to close
    with that.
        To get this legislation passed or to get these reforms in
    place in a bipartisan way is absolutely essential, but it is
    just the first step of the task ahead of us. What I would in
    closing ask that the Committee really focus in the next step
    and we start wrestling with these whole issues of inherent
    powers without ever restricting those powers that a President
    needs in the kinds of crises that President Putin is reminding
    us of every day these days. Sorry for the extra time, Mr.
    Chair.
        [The statement of Mr. McCleary follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. Thank you, Mr. McCleary, and thank you for your
    time and your work.
        There are a couple of articles I would like to introduce
    into the record, without objection.
        Mr. Cohen. First, is a treatise by Ms. Linda Green, a
    professor of laws called, ``Up Against the Wall: Congressional
    Retention of the Spending Powers in Times of `Emergency.' ''
    Without objection, it will be introduced.
        Second, there is a letter from a bipartisan group: National
    Taxpayers Union, Americans for Prosperity, Concerned Veterans
    for America, FreedomWorks, Our Street Institute, Taxpayer
    Protection Alliance, Taxpayers for Common Sense, rather by a
    partisan group, with a one-page letter simply asking for
    support for efforts to reform the act. So, without objection,
    that will be entered into the record as well.
        [The information follows:]

                            MR. COHEN FOR THE RECORD

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

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        I did mention in my opening that we do not have direct
    jurisdiction over these laws. I knew that. I asked again my
    counsel Mr. Park why. Apparently in the early 1990s the
    parliamentarian ruled that it goes to Transportation. That
    parliamentarian is gone, but this Congress continues. Just like
    with the National Emergency Act his--that work and that
    decision lingers. It was because of that, as I understand it
    there was a national emergency issued concerning a
    transportation issue. So, he ruled on the particular bill
    without ruling on the concept, which was stupid, but we still
    are burdened by that.
        So, we are going to put in--counsel says you can change the
    rules. I guess you can change the rules now. Does it take two-
    thirds? Well, we will put in a rule change and try to get it
    changed with two-thirds and have them directed to Judiciary,
    which is where it should be, and we will try to change that.
    That is something we are laboring under.
        Mr. DeFazio, I have a lot of appreciation and I think he is
    right about Boeing not moving to Virginia, but he doesn't
    probably give a hoot about this or even know what is in his
    jurisdiction.
        With that, we will go to questions. I will be first and I
    will proceed under the five-minute rule of questions.
        Ms. Goitein, you mentioned that there are certain inherent
    powers that Presidents sometimes claim. What are those inherent
    powers that they sometimes claim?
        Ms. Goitein. Thank you for that question. Let me just
    quickly point out that Congressman DeFazio has actually
    sponsored National Emergencies Act reform in the National
    Security Reforms and Accountability Act and is--
        Mr. Cohen. Well, don't tell anybody else that I said that.
        [Laughter.]
        Ms. Goitein. Well, he's a very a strong champion on this
    issue, so I hope that the two of you will be working together.
        I am very worried about claims to presidential--sorry,
    presidential claims to inherent constitutional emergency
    powers. As I mentioned before, the Constitution does not give
    the President any explicit powers and the handful of powers
    that it does include that look like crisis response powers are
    granted to Congress, not the President. GianCarlo covered that
    in his testimony.
        Nonetheless, it has not stopped Administrations, in the
    last few decades anyway, from laying claim to vast inherent
    emergency powers and these claims are very often set forth in
    secret Department of Justice legal memoranda that we only know
    about when they happen to be leaked such as in the case of the
    torture memos, as an example.
        These claims cannot be tested because there is no way to
    get them in front of a court. They have not been validated by
    the courts, but they are lying there like loaded guns. One of
    the reasons why this concerns me so much is because of the
    existence of a category of emergency powers known as
    Presidential emergency action documents.
        These documents are draft Executive Orders, proclamations,
    directives, messages to Congress that are prepared in
    anticipation of a range of worst-case scenarios, ready for the
    President's signature, if one of those scenarios were to come
    to pass. They originated as part of the Eisenhower
    Administration's planning for continuity of government in the
    wake of a Soviet nuclear attack, but they've since expanded to
    address other types of emergencies.
        These documents are almost completely shrouded in secrecy.
    None of them has ever been released or even leaked. Moreover,
    they're not shared with Congress, despite the fact that, even
    the most highly classified covert military and intelligence
    operations have to be shared by law with at least the gang of
    eight.
        Nonetheless, we do know a little bit about their contents
    from other official records: Department of Justice memoranda
    and the like that have been made public over the years. From
    these sources we know that emergency action documents up to
    about 1970 purported to authorize martial law, suspension of
    habeas corpus by the President, the round-up and detention of
    subversives inside the United States, and censorship of the
    news media. Presumably at least some of these proposed actions
    rested on claims of inherent emergency powers because there
    were not statutes in place at the time that would have
    permitted them.
        We know a lot less, frighteningly, about the contents of
    current emergency action documents, but we do know that as of
    2017 there were 56 of them and they were undergoing review and
    revision by the Trump Department of Justice.
        Now, I want to be very clear there is nothing wrong with
    advanced planning for emergencies. It's a good idea. That's not
    the problem here. The problem is twofold: First, at least some
    of the older documents that we know about had plans in them
    that would violate the Constitution or laws passed by Congress.
    Second, and perhaps relatedly, Congress is being cut out of the
    planning process and that prevents Congress from exercising its
    constitutionally-assigned oversight role. It also allows the
    President to rely on secret claims of inherent authority that
    have never been tested or approved by any court.
        Senator Ed--sorry.
        Mr. Cohen. That is all right. Let me ask you this: I can't
    google emergency powers and it will all come up. Is there any--
    there is no place in the world where you can just go and look
    them up in the back of a book and go emergency powers and they
    will show up?
        Ms. Goitein. You cannot see any Presidential Emergency
    action documents. The Brennan Center has a resource page that
    compiled all the publicly available documents that refer to
    them, that describe them to try to get a sense of what's in
    them, but the documents themselves you cannot find them
    anywhere. They have never, ever been disclosed in any way,
    shape, or form.
        Mr. Cohen. Did the 1976 law require them to expire after
    one year?
        Ms. Goitein. No, it did not apply to Presidential Emergency
    action documents. Now, let me say that these documents are
    planned actions. So, they are directives that are not signed
    yet. The idea is if an emergency were to happen, they would be
    put into place. It's possible that some of these documents,
    some of these directives would trigger emergency powers under
    the National Emergencies Act, that then would expire after a
    year.
        My concern is that some of them rely on claims of inherent
    presidential authority that would fall under the National
    Emergencies Act. This is very--
        Mr. Cohen. Thank you.
        Ms. Goitein. Sorry.
        Mr. Cohen. Go ahead. Go ahead.
        Ms. Goitein. I wanted to quickly say that Senator Ed Markey
    has a bill that would address this problem in the simplest and
    most-tailored way possible. It would require the President to
    disclose Presidential Emergency action documents to the
    relevant Oversight Committees in Congress. That legislation has
    been incorporated into the Protecting our Democracy Act, which
    has passed the House, and also the bipartisan National Security
    Reforms and Accountability Act.
        Mr. Cohen. Thank you.
        Mr. Johnson, you are recognized for five minutes or more.
        Mr. Johnson of Louisiana. Thank you, Mr. Chair. Appreciate
    the insight of our Witnesses today; really do. It is really
    important.
        Thanks for the history lesson, Mr. McCleary. We could
    listen to you all morning.
        Listen, my questions are for Mr. Canaparo. Congress passed
    the National Emergencies Act, as we have all discussed, to try
    to place guard rails around the President's use of emergency
    authority. So, not to crash the bipartisan mood of the hearing,
    but I got to talk about current real-life events, right?
        So, some on the left right now as we speak are calling on
    President Biden to use this authority to circumvent Congress
    and to accomplish radial political agendas. So, for example,
    just last January 2021, Senate Majority Leader Chuck Schumer
    said that President Biden should declare a national emergency
    to address climate change. Obviously, this is something I
    believe Congress should be deliberating. President Biden should
    declare a national emergency on other things. Last few weeks
    White House scrambled to hold meetings to determine how it can
    declare a national emergency in the wake of the Dobbs case leak
    regarding keeping abortion on demand in place.
        So, the question is kind of a broad one: Would declaring a
    national emergency to address climate change, for example, be
    an abuse of the President's Emergency authority? What do you
    think about it?
        Mr. Canaparo. So, I'll take a slightly unusual attack. It
    reminds me of--I don't know if you're familiar with the author
    James Freeman Clarke. He wrote, ``politicians look to the
    success of their party; statesmen look to the success of the
    country.'' Politicians take a four-year view and try to achieve
    whatever they can with whatever power they have in four years;
    statesmen take 100-year view.
        So, the question really is who should decide? If you find
    yourself cheering on the President's use of emergency power
    when you agree with the outcome and decrying it when you don't,
    you might fall into the politician camp and not the statesmen
    camp. The question is who decides? The answer that the
    Constitution provides is Congress. Congress should decide
    except when I think it is fair to say you all decide, Congress
    decides that there are some situations in which you truly
    cannot react with the necessary speed.
        I'm going to--a quote from a law review article by then-
    professor, now-Justice Amy Coney Barrett that, ``Rendering the
    decision legislative also ensures that a decision to suspend
    emerges from a process that is relatively more representative
    of the people whose civil liberties are at stake.''
        So, when we get into the problem of deciding of looking at
    specific emergencies, what we're trying to do is reason from
    specific examples that we like or don't like into a general
    framework, but that's not how we're going to solve the problem.
    It is much better to start from the Constitution's text and
    logic and reason forward into a general framework that we can
    all live with whether we like the outcomes or don't.
        Mr. Johnson of Louisiana. I love that response. Justice Amy
    Coney Barrett has been a dear friend of mine since high school
    and back then in the 80s we used to talk about concepts like
    this; we were the two nerds in the room, but there was a lot
    more statesmanship at the time, right, and maybe less
    politicians, quoting--going back to your earlier statement.
        This is the quandary, the situation we find ourselves in,
    right? Not enough people are talking the national perspective
    and the long view; we are all trying to achieve these immediate
    gains. I think it is corrosive to the institutions and I
    suspect--well, I know you all agree.
        Let me ask you, for those of us who have to make some
    ultimate decisions on this what would you say is the best
    source of the original intent? Particularly we are talking a
    lot about inherent emergency powers and that kind of thing.
    What is some of the best source material we can go study from
    the Founders' view? Is it the Federalist Papers? Is it
    particular sources? What would you say on that? I might ask all
    of you that question.
        Mr. Canaparo. Sure. Just to keep my answer short, my sort
    of go-to is often Justice Joseph Story's ``Commentaries on the
    Constitution of the United States.''
        Mr. Johnson of Louisiana. Perfect. That's great. I have got
    that volume.
        How about Ms. Goichee?
        Ms. Goitein. Goitein.
        Mr. Johnson of Louisiana. Goitein? Okay.
        Ms. Goitein. Yes.
        Mr. Johnson of Louisiana. I thought it was French. Sorry.
        Ms. Goitein. So, I think there are a number of sources in
    GianCarlo's testimony that are absolutely worth looking at. I
    would add--these are a little more recent, but I would add
    Justice Jackson's opinion in Youngstown is a seminal
    articulation of the balance of power between the President and
    Congress. For looking at sort of the intent of the Framers and
    sort of an originalist understanding there is a wonderful
    article by Professor Saikrishna Prakash at the University of
    Virginia Law School entitled, ``The Imbecilic Executive.'' I
    love that title.
        Mr. Johnson of Louisiana. Yes, I wish I had chosen it
    myself.
        Ms. Goitein. It's not quite as ad hominem as it sounds.
    It's a truly wonderful article and I would recommend it to
    everyone and it shows how our understanding of inherent
    presidential authority has just morphed dramatically in recent
    times from the original understanding, which was that the
    Congress did not provide the President with any inherent
    emergency powers.
        Mr. Johnson of Louisiana. The reason is--I am out of time,
    but I will just conclude by saying this: Obviously we are going
    to original intent, talking about the Framers' intent. They
    wanted a full body of the duly elected representatives of the
    people to make these important decisions, as you indicated, and
    not just one person. That was sort of--that is inherent in our
    system is that we are trying to dilute and separate the powers
    and this is maybe the most glaring example we have of the
    abuses and the usurpation.
        So, appreciate all your insight. Gives a lot uto think
    about. I yield back.
        Mr. Cohen. Thank you, sir. Interesting to know about you
    and Justice Barrett's long-time relationship.
        Mr. Canaparo--is it John Carlo?
        Mr. Canaparo. GianCarlo, yes.
        Mr. Cohen. So, that was the second mistake I made.
        [Laughter.]
        Mr. Cohen. The first one I got your name right, but that
    is--thank you.
        Ms. Ross, you are recognized for five minutes.
        Ms. Ross. Thank you, Mr. Chair.
        Thank you to the Witnesses. This has been a fascinating
    hearing.
        In 1976 Congress formalized the ability of the Executive to
    exercise emergency powers during times of national duress. You
    have given us a great history of how that has operated.
        Throughout this pandemic we have seen the President and
    Governors of States across the country use these powers to
    respond swiftly to a rapidly-evolving public health crisis by
    expediting the production and delivery of personal protective
    equipment, implementing mask and vaccine requirements, and
    issuing shelter-in-place advisories for at-risk communities.
        We must remember that this authority is not inherent to the
    Executive. Rather it is a privilege that exists through an act
    of law passed by Congress. The ability to frame and limit the
    power of the Executive ultimately belongs to the people and
    that is why we are here discussing this important topic.
        I strongly believe that our nation ought to grant emergency
    powers in times of crisis, but we must be diligent in ensuring
    that such powers are not abused by the Executive. Emergency
    authorities must only be exercised at times when science and
    public safety indicate that foregoing the legislative process
    is critical to protecting the lives and health of Americans who
    are at immediate risk of harm.
        We have seen such scenarios in the past such as during
    natural catastrophes, wars, and right now a public health
    crisis. In each of these instances there is a clear and
    imminent threat to the safety of the public. This ought to be
    the standard that we follow when determining whether it is
    appropriate to grant emergency authorities to the Executive.
        My first question is for Ms. Goitein. I hope I said that
    right. How can Congress increase transparency in how Presidents
    are actually using their emergency powers?
        Ms. Goitein. Thank you, Congresswoman. That's a wonderful
    question. The bills that we are talking about, including the
    Article 1 Act, the Protecting our Democracy Act, the National
    Security Powers Act--all these bills would require enhanced
    reporting. Right now, under the National Emergencies Act, the
    President only needs to report on expenditures that have been--
    expenditures in relation to emergency declarations every six
    months. Frankly, it is not clear that this is even happening.
    We've been unable to track down reports of the expenditures
    related to the 9/11 emergency declaration, for example.
        So, first, Congress needs to insist on getting the reports
    it should be getting under existing law, but under the reforms
    that we are talking about the President would not only have to
    report on expenditures, but would also have to report on the
    specific actions that had been taken within the reporting
    period. I think that's very important.
        May I say one quick thing also about the COVID emergency
    declaration, which is actually--it's interesting, very little
    of the Federal response to COVID-19 has relied on powers
    available under the National Emergencies Act. National
    emergency powers are really a very small part of that.
    Actually, for all the actions that are currently relying on the
    national emergency declaration, there are non-emergency powers
    that would allow the President to do the same thing.
        Mostly the laws that have been undergirding the Federal
    response have been--for example, with the mask mandate, that's
    the Public Health Service Act, and so provision of the Act
    that's available without any emergency declaration. Similarly
    in terms of spurring production of vaccines, that was under the
    Defense Production Act, most of which is available to the
    President without any emergency declaration.
        So, yes, I agree it's important to move flexibly and
    quickly. It was important when COVID struck, and it remains
    important that there be flexibility in the provision of home
    confinement services and similar actions. That flexibility is
    available under a wide range of laws and very little of it
    right now is dependent on the national emergency declaration.
        Ms. Ross. Thank you so much. I yield back.
        Mr. Cohen. Thank you, thank you, thank you, Ms. Ross.
        Now, patiently waiting, but I am sure with great questions
    and insight, Mr. McClintock.
        Mr. McClintock. Well, thank you. Mr. Chair, I want to thank
    you for a truly nonpartisan hearing on a very, very important
    subject.
        James Madison said that in his opinion, the single most
    important provision in the Constitution was the provision that
    gave the power to declare war to Congress and not to the
    President. The reason for that was simply that war enhances the
    power of the President enormously and therefore it creates an
    obvious perverse incentive if the Presidents declare war. It
    follows that any measure that enhances the President's power
    should not be in the hands of the President, human beings being
    what we are. In the words of the great philosopher Jack Handey,
    ``In a former life I must have been a great king because I
    really like it when people do what I tell them to.'' That is
    just in our nature.
        There was a discussion at the convention with respect to
    the wording of that clause. It was originally giving Congress
    the power to make war solely. That was changed from ``make'' to
    ``declare'' for concern that the President should have some
    power inherent to repel an immediate invasion before Congress
    could make a declaration.
        December 7, 1941, the Japanese attacked the U.S. fleet at
    Pearl Harbor. December 8, 1941, the President appears before a
    Joint Session of the Congress. In that speech he says, ``As
    Commander and Chief of the Army and the Navy I have directed
    that all measures be taken for our defense.'' FDR understood
    that beyond those immediate acts he could not take any
    offensive act without the Declaration of War by the Congress,
    which was then forthcoming.
        The reason I recount all this is to ask is there any
    conceivable occasion other than a surprise attack where the
    President should be able to invoke extraordinary powers without
    the consent of Congress? Oh, I will start with Mr. Canaparo.
        Mr. Canaparo. Canaparo.
        Mr. McClintock. Thank you.
        Mr. Canaparo. My name tag has disappeared, so I apologize
    for that. So, I am generally skeptical of the argument that the
    President has inherent powers that are beyond those articulated
    by Article 2.
        I think you hit the discussion about the attack on Pearl
    Harbor sort of illustrates how this is supposed to go.
    Certainly, as Commander-in-Chief of the Armed Forces the
    President has certain powers attendant to that constitutional
    directive. The power to for instance defend the country from an
    invasion or a hostile attack is certainly inherent in the--in
    his role as Commander-in-Chief, but--
        Mr. McClintock. Very limited to repelling an attack, not
    initiating an attack on his own. My question is, is there any
    circumstance, conceivable circumstance where the President
    should be able to invoke powers on his own authority?
        Mr. Canaparo. Powers separate from these attendants to
    being Commander-in-Chief?
        Mr. McClintock. Well, I am speaking more broadly of any--a
    pandemic, for example. Why would the President be given
    authority to acquire extraordinary powers on his own say
    without the consent of Congress? Seems to me that is the proper
    role of the decision-making branch of the United States
    government.
        Mr. Canaparo. Thank you. In general, yes, the problem we're
    operating from right now though is that over the last 100 years
    or so Congress has delegated to him so much power already--
        Mr. McClintock. Yes, well, maybe we should try to un-
    delegate all those powers. My question is--
        Mr. Canaparo. Right.
        Mr. McClintock. --is there any conceivable circumstance--I
    will throw it open to any of the panelists--where the President
    should have that authority?
        Mr. McCleary. I would argue that we have to look at the
    circumstance. The President wouldn't even have to ask for the
    authorities; he would just--I use the term ``assumed'' inherent
    power. So, let's take real world cases.
        Mr. McClintock. Well, I mean, the President can assume the
    power to stop the tide from coming in, but that doesn't make it
    right or realistic.
        Mr. McCleary. Oh, I understand that.
        Mr. McClintock. Yes, I mean it doesn't give it any
    authority.
        Mr. McCleary. My point is, and Miller's point was that the
    President will act regardless of whether you give him authority
    or not. That is the problem. Now, it's often said that the
    President has--
        Mr. McClintock. Well, doesn't the Constitution prevent
    that? I mean, the Constitution is separation of powers. Its
    mother's rule writ large. Mother has two hungry sons, one slice
    of pie. How does mother slice the pie so both of them are
    satisfied? One slices, the other chooses. That is the
    constitutional separation of powers. One brother appropriates
    funds but can't spend them; the other spends funds but can't
    appropriate them.
        Mr. McCleary. Right.
        Mr. McClintock. One brother makes law, but can't enforce
    it; the other enforces law, but cannot make it. One brother can
    declare war, but can't wage it; the other can wage war, but not
    declare it. That is a self-correcting mechanism. I am out of
    time now, but it seems to me that it is time that Congress
    restored that balance which is at the center of the
    constitutional architecture that keeps us free and keeps the
    Constitution self-enforcing.
        Mr. McCleary. I totally agree.
        Mr. McClintock. Again, there is no penalty for violating
    the Constitution because the Constitution is supposed to be a
    self-enforcing document. The only way that works is if the
    separation of powers is maintained. We have blurred that
    separation of powers and I think put at risk the entire
    architecture of our Constitution. I yield back.
        Mr. McCleary. Benjamin Franklin had a very cryptic remark
    to that. He said, ``there are only two ways that you can
    actually control a President, and that is either to impeach him
    or assassinate him.'' This is the problem when you get into
    let's say a biological attack--is where I looked at it--and
    also a nuclear attack. Events move so quickly. This--and if
    it's a normal event, these--we can go through this process, but
    what happens given the circumstances that we were talking about
    with President Carter at the beginning where we have 15 or 20
    minutes to make decisions? Let's say a smallpox attack hits and
    we have to make decisions almost instantly about who gets
    inoculated and who doesn't get inoculated, all these kinds of
    things. That's when we get into this very dangerous territory.
        Ms. Goitein. Thank you. I just quickly wanted to jump in on
    what Mr. McCleary was saying and say that it may be the case in
    some situations where Presidents are going to act on the spur
    of the moment very quickly and it may be a situation where they
    think it's an existential threat and they're not necessarily
    going to limit themselves to what the law says or what the
    Constitution says.
        What used to happen in this country; and Professor Prakash
    discusses this in his article, when that happened is the
    President would act, but he would acknowledge that he had acted
    in haste and perhaps outside the bounds of the Constitution to
    try to preserve the nation and he would go to Congress to try
    to get some kind of ratification for that. He would not pretend
    that his actions had been authorized by the Constitution.
        What happens today is that Presidents assume that anything
    that they think is necessary for the preservation of the nation
    must therefore be authorized under Article 2. It doesn't work
    that way. I think the system we had in place earlier where the
    limitations of the Constitution were acknowledged and where if
    a President stepped outside the bounds, everyone acknowledged
    that the President stepped outside the bounds. If it was
    considered in retrospect to be something that was beneficial
    for the nation, Congress would step in and ratify it, would
    pass legislation indemnifying the actors, for example.
        To say anything that in the moment the President feels that
    he or she must do by definition is therefore constitutional,
    that's backwards and it's very dangerous.
        Mr. Cohen. Thank you very much.
        Mr. Johnson, you are recognized for five minutes.
        Mr. Johnson of Georgia. All right. Thank you, Mr. Chair. I
    have got some people doing some work, some heavy construction
    work on the outside of my apartment which I have no control
    over. I think it creates a very inconvenient aggravating
    situation for the Witnesses, so what I will do is I will yield
    my remaining time to you.
        Mr. Cohen. Thank you and good luck.
        [Laughter.]
        Mr. Cohen. I want to now recognize a man who we have
    awaited his arrival; he has timed it well, our honored guest,
    our most noted Member for dealing on this issue in the past,
    the gentleman from Texas and the University of Virginia, Mr.
    Roy.
        Mr. Roy. Well, I appreciate the Chair and really do
    appreciate this hearing and appreciate the Witnesses,
    appreciate you all being here.
        This is an important issue. As was noted earlier, I believe
    we, my friend Mike Lee in the Senate and I, have worked
    together to introduce this legislation, the Article 1 Act, in
    the previous Congress, my first Congress when President Trump
    was President, and I would note it was in response to some
    degree and much to the chagrin of some of my supporters back
    home with respect to building the fence along the border and
    the use of emergency power to go down that road.
        I am a strong supporter of needing infrastructure, as is
    well-noted in debates in this Committee and believing that we
    need a fence and a wall and we need to have infrastructure on
    the border, the southern border to manage that crisis. I
    believe in limits to Executive Power and I think it is
    critically important that we do that.
        To the point of Mr. Canaparo, the reality of politicians
    kind of flapping in the breeze I think a little bit on this
    sort of based on the political expediency of the moment of
    whatever issue you want to accomplish is a real risk for all of
    us, both sides of the aisle, no matter who is in power, and
    that we ought to, this body, find ways to come together to try
    to constrain the executive within the appropriate lanes under
    the Constitution and reassert congressional authority where it
    is necessary.
        So, the bill is obviously designed to rein in these 40--I
    think you testified 41; I think I had 43 from CRS, whatever it
    is, 40-some emergencies that we are operating on dating back to
    1979. It is just patently absurd that we would be operating
    under a ``emergency'' for almost as long as I have been alive.
    I mean, that is an extraordinary reality that we are dealing
    with.
        I did want to note, and then I want to go to some questions
    to you all, in the current context--and like my friend from
    Louisiana mentioned, I don't want to break down in a bipartisan
    feel here. I actually mean this with respect to both President
    Trump and President Biden. I am deeply concerned about the use
    of emergency powers during this pandemic. Deeply concerned. Not
    because of the motives involved, not because of whatever
    disagreements we might have on how powers should be--or on the
    effective of vaccines or so forth, but just literally the power
    of the government through saying--not--and by the way, not just
    through the National Emergencies Act, right, but through the
    Stafford Act, through the Public Health Service Act, and other
    powers granted to the Executive Branch, that we have a
    situation where the President of the United States can declare
    an emergency 700-and-whatever-days-ago it was, 792 days ago,
    and then have that extended by a subsequent President, and then
    use these acts and have the power of the President and the
    Executive Branch say, okay, we have got this problem, this
    emergency.
        Under that have the ability for pharmaceutical companies,
    whether it is Operation Warp Speed to try to get it done or
    whether it is the extension of the Biden Administration to try
    to encourage people to take it, to then have liability
    protection for those companies with a mandate from the
    government under the auspices of an emergency that people then
    get said vaccine and then potentially through the coercion of
    the power of government say you might lose your job if you
    don't take said vaccine, if you are in the military and so
    forth or federal worker, Border Patrol, FBI, anybody else,
    healthcare worker, the extraordinary power of the Executive
    Branch doing all that I just said without a single act of
    Congress to say yes, go do that.
        Would the panelists agree that that is a concerning use of
    emergency power and authority by the Executive Branch? If you
    could go quickly because I got 40 seconds. Then I will sum up.
    Go down the line, yes or no roughly.
        Mr. Cohen. I will give you 70 seconds.
        Mr. Roy. Okay. Well, thank you, sir.
        Ms. Goitein. I'll be very quick. I think that when COVID
    struck it was absolutely an emergency. It met the definition. I
    think broad flexibility for the President and for the Federal
    Government was appropriate. I think the question is, where are
    we now, two years after the pandemic and is there a way to
    transition now to nonemergency powers. If the nonemergency
    powers in place are not sufficient whether Congress can step in
    and provide--
        Mr. Roy. Mr. Dayton?
        Thank you, Ms. --
        Mr. Dayton. I agree with Ms. Goitein's comments. I think
    that a critical part of any reform is going to be providing for
    a way to--for Congress to act quickly, and I think that's--your
    bill does that. Obviously, the Protecting our Democracy Act
    components on national emergency reform do that. I think that
    could be a foundation for building this in other areas. We
    mentioned National Security Reform Accountability Act as a
    model that uses this in war powers and arms sales to foreign
    areas, but you could also think about ways to use this
    domestically.
        Mr. Roy. Yes.
        Mr. Dayton. I think this is an opportunity to build a
    foundation and example that you can use in other areas.
        Mr. Roy. Mr. Canaparo?
        Mr. Canaparo. Yes, so what you hit on is this problem with
    the national emergency laws. The whole panoply of them creates
    such a draconian and arcane system that these decisions can be
    made, and the ripple effects can ripple outwards without any
    say-so from Congress and without any input from the people. So,
    the problem really is one of this who decides problem, and it's
    certainly at this point because of the way that Congress has
    delegated so much power. It's not you anymore and it should be
    you.
        Mr. Roy. Mr. McCleary?
        Thanks, Mr. Chair, for the indulgence.
        Mr. McCleary. This is the nut of the problem, and I totally
    agree with you. I totally agree with the Ranking Member that
    this is the struggle, is to restore the balances of power.
        President Trump actually made a very intelligent statement
    that was rather disparaged when he said, ``I have powers you do
    not even know about.'' That was a great contribution because it
    opened this whole discussion in fact. You need to move in this
    legislation the way we're talking and achieve the objective
    that you're talking about. Then we also need to explore again
    what President Trump had introduced, and that is what are these
    powers that no one knows about? They are dictatorial.
        The fact is the President of the United States has two
    powers:

            (1)  To blow up the world; President Carter.
            (2)  With not even a stroke of the pen, blow up the
            Constitution.

        We've got to--it's--as the Ranking Member points, in our
    role in saving the Republic, to keep the Republic we have got
    to wrestle with these questions. This is the historical moment
    to do that. So, I really applaud the work that you've been
    doing, Congressman.
        Mr. Roy. Well, I appreciate you all.
        Mr. Chair, thank you for the time. I would just note for
    the Committee and for our work as the Constitution Subcommittee
    on a bipartisan basis that--and I mean this truly, my concern
    here spans across--Presidents from both parties. The pandemic
    is a good example because there is an altruistic motive to care
    for people and ensure that there is a vaccine available, and
    that people can get--and we have had debates about that.
        The point here is just the power, like who gets to decide,
    how does that happen, and the importance of congressional
    action on that. Anyway, I appreciate the extra time from the
    Chair.
        Mr. Cohen. Thank you.
        Let me ask: The legislation has been introduced, Mr. Roy
    and Mr. Lee. Does anybody here not think that is a law that
    should be passed?
        Everybody thinks that is a good bill? Okay.
        You don't think it was a good bill?
        Mr. Johnson of Louisiana. I think it is a great bill.
        Mr. Cohen. Oh, good.
        [Laughter.]
        Mr. Johnson of Louisiana. He is sitting right here. He is
    sitting right here. You can be honest.
        Mr. Cohen. Thank you.
        Mr. Roy. I can leave if you want to be able to speak
    freely, Mike.
        Ms. Goitein. If I could add to that, that bill has served
    as the core reform in all of these other bills that we've been
    talking about. Some of those other bills have added some
    features. For example, several of them would add a five-year
    total limitation on the length that any emergency declaration
    can stay in place. I think some of those additions were helpful
    and are definitely worth looking at.
        Mr. Cohen. That bill hasn't become law though, right?
        Ms. Goitein. Correct. None of this has become law--
        Mr. Cohen. Is it because it is a stand-alone or is it part
    of another bill now?
        Mr. Roy. Well, so the Article 1 Act is still stand-alone,
    but then there are pieces of it, as the gentlelady is talking
    about, that it goes--that have been imbedded into other reforms
    that have been put forward.
        Ms. Goitein. In fact, in its entirety pretty much that bill
    was picked up and put into several other pieces of legislation
    and along the way other features were added. I think it's worth
    looking at some of those other features--
        Ms. Jackson Lee. You have--
        Ms. Goitein. I'm sorry.
        Ms. Jackson Lee. Well, you need to let--
        Mr. Cohen. We will get to you in a minute. I didn't see
    you, Ms. Jackson Lee, we will get right to you, but we are
    going to finish up this discussion quickly, if you don't mind.
        So, there were some bills that were put in the Democracy
    Act, right?
        Ms. Goitein. Protecting our Democracy Act, yes. That
    started essentially with the Article 1 Act and it includes a
    five-year limitation on the total length of any emergency
    declaration. It also includes a limitation on using emergency
    powers to deal with anything other than the emergency so that
    it has the powers have to relate to the nature of the
    emergency, as you were speaking about in your opening
    statement. It has a provision that emergency powers cannot be
    used to take an action that Congress has expressly withheld
    authorization for.
        Mr. Cohen. All right. How about Mr. DeFazio's proposal? Is
    that something that--
        Ms. Goitein. Very similar. Very similar to what came out of
    the Protecting our Democracy Act as it passed the House.
        Mr. Cohen. Right. So, the Protecting our Democracy Act
    turns out to be kind of a problem because it is not going--it
    is dead. So, it is taking with it the--down to the bottom of
    the sea some good things that might be able to pass.
        Ms. Goitein. Well, the Protecting the Democracy Act has
    many different provisions in it. The NEA reform provision
    within the Protecting our Democracy Act has, as we've
    mentioned, extremely broad partisan support. So, maybe that
    piece of it--
        Mr. Cohen. Those need to be extracted from the law and made
    a free-standing bill and maybe they would see the light of day.
        Ms. Goitein. Exactly.
        Mr. Cohen. Thank you.
        Mr. Roy. Mr. Chair, may I ask one quick follow-up question?
        Mr. Cohen. Sure.
        Mr. Roy. Mike, or Senator Lee and I, we directed this
    obviously with--very specifically to the National Emergencies
    Act, but should we expand that to apply at least in concept to
    the other bills, or other acts I mentioned, like the Stafford
    Act or the Public Health--what is the Public Health Service
    Act, or other things where there is extensive use of Executive
    power?
        Ms. Goitein. It should be a longer process of looking at
    those acts and how they have been used to try to figure out the
    best solution for them. I would hesitate to say right now
    that's the right solution for those bills. I think they address
    different issues and work differently. They have different
    existing procedural criteria in place.
        Mr. Roy. Sure.
        Ms. Goitein. So, I don't know that it's that simple. It's
    worth taking a look.
        Mr. Johnson of Louisiana. Can I add one thing before we go
    to the great Sheila Jackson Lee? Just one thing, Mr. Chair,
    briefly?
        Mr. Cohen. On that, because it is so important?
        Mr. Johnson of Louisiana. The Stafford Act of course covers
    natural disaster--hurricane emergency declarations. Just one
    parenthetical note: On day 30 sometimes they are just getting
    on the ground to assess the needs and all that. So, I think
    that is a totally different calculation, but I yield back.
        Mr. Cohen. Thank you.
        Ms. Goitein. Yes, and just--
        Mr. Cohen. Ms. Jackson Lee, you are recognized for five
    minutes.
        Ms. Jackson Lee. Good morning. Let me thank the Witnesses
    for their very detailed expression. We will look very deeply at
    their statements, their written statements.
        I want to follow the line of questioning of my colleagues
    in terms of what I heard, the different aspects of declarations
    of emergency and anywhere--living in hurricane country
    anywhere, from the desperation of those who are experiencing
    hurricanes and we are begging for a declaration of emergency,
    if you will, sometimes stymied by our State governments not
    acting quickly, there may be other national if you will weather
    disasters. There are the medical disasters and of course there
    is the question of issues dealing with national security.
        Let me refer the Witnesses back to January 6 and the early
    denials from the 2020 election that there was a victory for Joe
    Biden, but there was a victory for someone else, the prior
    President. The texts that we have about potential of martial
    law, which is a little different from the issue of national
    emergencies.
        I would appreciate if Ms. --each of you Witnesses would
    answer the question about how careful we need to be in
    discerning between medical emergencies which may need to go on
    for a long time versus someone who abuses it and the question
    that may impact national security. I think changing elections
    impacts national security. So, what kind of fine line do we
    need to make sure a President can act when Americans are
    desperate as opposed to a President using it to overturn
    elections, to engage in conflict or war outside of declaration
    of war?
        So, would each of you starting with Ms. Goitein answer that
    question, please? Thank you very much.
        Mr. McCleary, Mr. Dayton?
        Ms. Goitein. Thank you, Congresswoman. I think Congress can
    and has made that distinction on its own in certain cases. As
    an example, I will mention the Public Health Service Act and
    the provision of that Act that allows the CDC to make
    regulations to prevent the transmission of communicable
    diseases into the United States from other countries or between
    States. That authority is not an emergency power. That's
    because when Congress granted that authority, it knew that this
    was not the kind of thing that could be where the President
    needed to do something for a week and then might not need to do
    that after a week. That a communicable disease; that's hard to
    say, that is spreading across the country, that is a process.
    Congress wanted the Federal government to have in place the
    authority it needed throughout that process to try to limit the
    spread of that disease.
        So, I think Congress itself can distinguish between powers
    that are going to be needed in the long term. Most legislation
    doesn't have a limit on how long the President can use those
    authorities, right? I mean, sometimes there are sunsets, but
    often it is indefinite. So, Congress can make that distinction.
        Now, for things like martial law; the Brennan Center has a
    report on this, we don't actually think martial law is legal
    and we don't think that the President has any authority under
    existing law to declare martial law. So, another important
    piece of this, especially when you're looking at some of the
    discussion around January 6, is to separate out the real
    emergency powers from the imagined ones.
        Ms. Jackson Lee. Thank you.
        Mr. McCleary?
        Mr. McCleary. I think it would be very advantageous to
    perhaps if former-Governor Ridge were able to testify; he's had
    a stroke, but he had to struggle with a lot of these issues.
    Over at Homeland Security a lot of these PEDs exist and they
    deal with all these issues of domestic crisis. That's why;
    maybe Ms. Goitein can comment on this, it is important that in
    any legislation we--that's put forward that you get insight
    into the Office of Legal Counsel's rulings on these PEDs. Are
    they using Second amendment authorities or are they using
    statutory authorities, or both in assuming these actions?
        Congresswoman, I think you would find it most interesting
    to have Homeland Security or the Secretary, if you have the
    jurisdiction, to really try to define what their position is on
    all these actions having to do with domestic crisis, whether it
    be a disease or whether it be a hurricane or whatever, because
    they're there and they have struggled with this issue. Again,
    right now it's secret. Thank you.
        Ms. Jackson Lee. Mr. Dayton?
        Mr. Dayton. Thank you for the question. I think there's two
    important parts of my response here. The first part is that we
    should be talking about clear authority. So, the talk about
    martial law, as Ms. Goitein has pointed out, there is no actual
    statute that would allow the President to invoke martial law
    via an emergency framework. That said, there are a lot of
    things lying around in the U.S. Code that are somewhat scary
    and there should be a careful review of those, and probably a
    substantial pruning of those powers.
        Mr. Cohen. Thank you. Thank you.
        Ms. Jackson Lee. Thank you so very much and let me say that
    this is work that we must do. Thank you. I yield back.
        Mr. Cohen. Thank you, Ms. Jackson Lee.
        We have I think had a very good bipartisan hearing.
    Hopefully we can get some work done out of it.
        I appreciate the Witnesses for your testimony, which has
    been so invaluable, and your work.
        This concludes today's hearing and I want to thank you all.
        Without objection, all Members have five legislative days
    to submit additional written questions for the Witnesses or
    material for the record.
        With that, the meeting is adjourned.
        [Whereupon, at 10:56 a.m, the Subcommittee was adjourned.]

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