[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.]

                                 [all]