[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
NEVER-ENDING EMERGENCIES--AN EXAMINATION
OF THE NATIONAL EMERGENCIES ACT
=======================================================================
(118-19)
HEARING
BEFORE THE
SUBCOMMITTEE ON
ECONOMIC DEVELOPMENT, PUBLIC BUILDINGS, AND EMERGENCY MANAGEMENT
OF THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
MAY 24, 2023
__________
Printed for the use of the
Committee on Transportation and Infrastructure
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available online at: https://www.govinfo.gov/committee/house-
transportation?path=/browsecommittee/chamber/house/committee/
transportation
__________
U.S. GOVERNMENT PUBLISHING OFFICE
52-652 PDF WASHINGTON : 2023
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
Sam Graves, Missouri, Chairman
Rick Larsen, Washington, Eric A. ``Rick'' Crawford,
Ranking Member Arkansas
Eleanor Holmes Norton, Daniel Webster, Florida
District of Columbia Thomas Massie, Kentucky
Grace F. Napolitano, California Scott Perry, Pennsylvania
Steve Cohen, Tennessee Brian Babin, Texas
John Garamendi, California Garret Graves, Louisiana
Henry C. ``Hank'' Johnson, Jr., Georgiavid Rouzer, North Carolina
Andre Carson, Indiana Mike Bost, Illinois
Dina Titus, Nevada Doug LaMalfa, California
Jared Huffman, California Bruce Westerman, Arkansas
Julia Brownley, California Brian J. Mast, Florida
Frederica S. Wilson, Florida Jenniffer Gonzalez-Colon,
Donald M. Payne, Jr., New Jersey Puerto Rico
Mark DeSaulnier, California Pete Stauber, Minnesota
Salud O. Carbajal, California Tim Burchett, Tennessee
Greg Stanton, Arizona, Dusty Johnson, South Dakota
Vice Ranking Member Jefferson Van Drew, New Jersey,
Colin Z. Allred, Texas Vice Chairman
Sharice Davids, Kansas Troy E. Nehls, Texas
Jesus G. ``Chuy'' Garcia, Illinois Lance Gooden, Texas
Chris Pappas, New Hampshire Tracey Mann, Kansas
Seth Moulton, Massachusetts Burgess Owens, Utah
Jake Auchincloss, Massachusetts Rudy Yakym III, Indiana
Marilyn Strickland, Washington Lori Chavez-DeRemer, Oregon
Troy A. Carter, Louisiana Chuck Edwards, North Carolina
Patrick Ryan, New York Thomas H. Kean, Jr., New Jersey
Mary Sattler Peltola, Alaska Anthony D'Esposito, New York
Robert Menendez, New Jersey Eric Burlison, Missouri
Val T. Hoyle, Oregon John James, Michigan
Emilia Strong Sykes, Ohio Derrick Van Orden, Wisconsin
Hillary J. Scholten, Michigan Brandon Williams, New York
Valerie P. Foushee, North Carolina Marcus J. Molinaro, New York
Mike Collins, Georgia
Mike Ezell, Mississippi
John S. Duarte, California
Aaron Bean, Florida
------ 7
Subcommittee on Economic Development, Public Buildings, and
Emergency Management
Scott Perry, Pennsylvania,
Chairman
Dina Titus, Nevada, Ranking Member Garret Graves, Louisiana
Eleanor Holmes Norton, Jenniffer Gonzalez-Colon,
District of Columbia Puerto Rico
Sharice Davids, Kansas, Lori Chavez-DeRemer, Oregon,
Vice Ranking Member Vice Chairman
Troy A. Carter, Louisiana Chuck Edwards, North Carolina
Grace F. Napolitano, California Anthony D'Esposito, New York
John Garamendi, California Derrick Van Orden, Wisconsin
Jared Huffman, California Mike Ezell, Mississippi
Rick Larsen, Washington (Ex Officio) Sam Graves, Missouri (Ex Officio)
CONTENTS
Page
Summary of Subject Matter........................................ v
STATEMENTS OF MEMBERS OF THE COMMITTEE
Hon. Scott Perry, a Representative in Congress from the
Commonwealth of Pennsylvania, and Chairman, Subcommittee on
Economic Development, Public Buildings, and Emergency
Management, opening statement.................................. 1
Prepared statement........................................... 3
Hon. Dina Titus, a Representative in Congress from the State of
Nevada, and Ranking Member, Subcommittee on Economic
Development, Public Buildings, and Emergency Management,
opening statement.............................................. 3
Prepared statement........................................... 4
Hon. Rick Larsen, a Representative in Congress from the State of
Washington, and Ranking Member, Committee on Transportation and
Infrastructure, opening statement.............................. 5
Prepared statement........................................... 6
WITNESSES
Soren Dayton, Director of Governance, Niskanen Center, oral
statement...................................................... 8
Prepared statement........................................... 9
Satya Thallam, Policy Advisor, Arnold & Porter, oral statement... 14
Prepared statement........................................... 16
Elizabeth Goitein, Senior Director, Liberty and National Security
Program, Brennan Center for Justice at New York University
School of Law, oral statement.................................. 18
Prepared statement........................................... 20
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
May 19, 2023
SUMMARY OF SUBJECT MATTER
TO: LMembers, Subcommittee on Economic Development,
Public Buildings, and Emergency Management
FROM: LStaff, Subcommittee on Economic Development, Public
Buildings, and Emergency Management
RE: LSubcommittee Hearing on ``Never-Ending
Emergencies--An Examination of the National Emergencies Act''
_______________________________________________________________________
I. PURPOSE
The Subcommittee on Economic Development, Public Buildings,
and Emergency Management of the Committee on Transportation and
Infrastructure will meet on Wednesday, May 24, 2023, at 10:00
a.m. ET in 2167 of the Rayburn House Office Building to receive
testimony on ``Never-Ending Emergencies--An Examination of the
National Emergencies Act.'' The hearing will provide a
background on the intent of the National Emergencies Act (NEA)
(P.L. 94-412) and examine the Presidential powers made
available under an NEA declaration to inform whether reforms
are needed to improve the oversight and accountability of such
powers. At the hearing, Members will receive testimony from
subject matter experts: Soren Dayton from the Niskanen Center,
Satya Thallam from Arnold & Porter, and Elizabeth Goitein from
the Brennan Center for Justice.
II. BACKGROUND
THE DIFFERENT EMERGENCY STATUTES
NON-NEA EMERGENCIES
The scope of this hearing is limited to emergency powers
made available under the NEA. However, it should be noted that
Federal law authorizes a number of different types of
``emergencies.'' There are three places in the United States
Code that provide guidelines for different types of non-NEA
emergencies, which include: public health emergencies,
Department of Defense (DOD) peacekeeping efforts to foreign
countries and international organizations, and emergencies and
major disasters.\1\ First, the Public Health Service Act (P.L.
78-410) allows the Secretary of Health and Human Services (HHS)
to make an emergency declaration if a disease presents a public
health emergency or if there is threat of a significant
outbreak of infectious diseases or bioterrorist attacks.\2\
Second, the President can direct the drawdown of defense
articles from the DOD if ``an unforeseen emergency exists which
requires immediate military assistance to a foreign country of
international organization; and the emergency requirement
cannot be met under the authority of the Arms Export Control
Act [22 U.S.C. 2751 et seq.] or any other law except this
section.'' \3\
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\1\ See Brennan Center for Justice, a Guide to Emergency Powers and
Their Use, (Feb. 8, 2023), available at https://www.brennancenter.org/
our-work/research-reports/guide-emergency-powers-and-their-use.
\2\ 42 U.S.C. Sec. 247d.
\3\ 22 U.S.C. Sec. 2318 (a)(1).
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Third, specifically within the Committee's jurisdiction,
are Emergency and Major Disaster declarations pursuant to the
Robert T. Stafford Disaster Relief and Emergency Assistance Act
(Stafford Act) (P.L. 100-707, as amended).\4\ These provide for
Federal assistance and support to states in responding to and
recovering from natural and man-made disasters.\5\ Under the
Stafford Act, the Federal Emergency Management Agency (FEMA) is
responsible for coordinating and providing supplemental Federal
assistance following a Stafford Act declaration.\6\ This
declaration occurs when the President determines ``Federal
assistance is needed to supplement State and local efforts and
capabilities to save lives and to protect property and public
health and safety, or to lessen or avert the threat of a
catastrophe in any part of the United States.'' \7\
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\4\ Stafford Act, Pub. L. No. 93-288, 88 Stat. 143.
\5\ Id.
\6\ Id.
\7\ 42 U.S.C. Sec. 5122.
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THE NEA DISTINGUISHED
Unlike the above authorities, the NEA is distinct as a
statutory framework intended to provide accountability to
additional Presidential emergency powers scattered throughout
the United States Code.\8\ The NEA states, ``with respect to
acts of Congress authorizing the exercise, during the period of
a National emergency or any special or extraordinary power, the
President is authorized to declare such an emergency.'' \9\
Notably, there are no statutory definitions of what type of
event qualifies as a National emergency--so the President has
discretion to determine if an event qualifies as an emergency,
until a co-equal branch of government reviews the National
emergency declaration.\10\
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\8\ H. Comm. on the Judiciary, Rep. To Accompany H.R. 3884, 94th
Cong. (1975) (H. Rept. 94-238).
\9\ 50 U.S.C. Sec. Sec. 1601-1651 [hereinafter National
Emergencies Act].
\10\ See Cong. Rsch. Serv. (LSB10267), Definition of Nat'l
Emergency Under the Nat'l Emergencies Act, (Mar. 1, 2019), available at
https://crsreports.congress.gov/product/pdf/LSB/LSB10267 [hereinafter
Definition of Nat'l Emergency].
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During the 94th Congress (1975-1976) concern was raised
regarding ``the continuous nature of invoked emergency
authorities and the absence of Congressional review after their
activation.'' \11\ The Senate Special Committee on the
Termination of the National Emergency (Special Committee) was
created to examine the statutory powers associated with
Presidentially declared National emergencies.\12\ In
particular, the Special Committee was concerned about four
existing emergency declarations, including emergencies related
to the 1950 conflict in Korea, the Banking Crisis of 1933, the
Post Office Strike in 1970, and foreign trade currency
restrictions in 1971.\13\ As a result, the NEA was enacted to
terminate the existing National emergencies and create a
mechanism for Congressional oversight of future Presidential
emergency declarations, including: a framework for expedited
procedures to terminate Presidentially declared emergencies,
continuous six-month review periods of declarations by
Congress, and requirements for emergency spending expenditure
reports to be submitted to Congress.\14\
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\11\ See Michael Greene, Cong. Rsch. Serv. (R46567) Nat'l
Emergencies Act: Expedited Procedures in the House and Senate, (Oct.
14, 2020), available at https://crsreports.congress.gov/product/pdf/R/
R46567/2 [hereinafter Expedited Procedures].
\12\ See Definition of Nat'l Emergency, supra note 10.
\13\ Id.
\14\ See Expedited Procedures, supra note 11.
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The President's ability to veto Congressional action to
terminate a declaration was restricted by the original 1976
law, which only required a concurrent resolution to be
passed.\15\ Concurrent resolutions do not require the
President's signature to be enacted.\16\ In 1983, the United
States Supreme Court decision in Immigration and Naturalization
Service (INS) v. Chadha, 462 U.S. 919 (1983), concluded that
legislative vetoes are unconstitutional.\17\ Thus, in 1985
Congress amended the NEA to require a joint resolution
requiring signature by the President.\18\ This effectively
removed Congress's ability to terminate an emergency absent a
veto-proof majority or agreement by the President.\19\
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\15\ Jennifer K. Elsea, et. al., Cong. Rsch. Serv. (R46379),
Emergency Authorities Under the Nat'l Emergencies Act, Stafford Act,
and Public Health Service Act, (July 14, 2020), available at https://
crsreports.congress.gov/product/pdf/R/R46379 [hereinafter Elsea CRS].
\16\ Id.
\17\ Elsea CRS, supra note 15; see also INS v. Chadha, 462 U.S. 919
(1983).
\18\ Elsea CRS, supra note 15.
\19\ Id.
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ONGOING EMERGENCY DECLARATIONS
Since the enactment of the NEA in 1976, there have been 76
National emergency declarations.\20\ Of the 76 declarations, 41
declarations are still active and the earliest dates back to a
1979 action to block Iranian Government Property.\21\ Notably,
only one of the 35 terminated declarations was the result of
Congressional action.\22\ H. J. Res. 7 (P.L. 118-3) related to
the COVID-19 declaration, which was signed into law on April
10, 2023, was the first time Congress effectively exercised its
termination power over the President's emergency powers.\23\
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\20\ See National Emergencies Act, supra note 9; Brennan Center for
Justice, Declared Nat'l Emergencies Under the Nat'l Emergencies Act,
(Apr. 10, 2023), available at https://www.brennancenter.org/our-work/
research-reports/declared-national-emergencies-under-national-
emergencies-act [hereinafter Declared Emergencies].
\21\ See Declared Emergencies, supra note 20.
\22\ Id.
\23\ Pub. L. 118-3, 137 Stat. 6.
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NEA REFORMS
In recent years there have been several bills introduced
which have sought to reform the NEA, but to date, legislation
has not been signed into law. On December 9, 2021, the House
passed H.R. 5314, the Protecting Our Democracy Act, which
included a limitation on Presidential powers under the NEA.\24\
Additionally, the Senate Committee on Homeland Security and
Governmental Affairs Committee marked up S. 764, the Article
One Act, on June 19, 2019.\25\ S. 764 requires Congress to
approve each National emergency proclamation.\26\ S. 764 would
direct that without Congressional approval, the President is
prohibited from declaring a different emergency for the same
issues in their tenure.\27\ It would also terminate each
declaration after 30 days unless Congress enacted a joint
resolution of approval and would automatically terminate each
National emergency after one year unless it is renewed by the
President and approved by a joint resolution from Congress.\28\
The President would additionally be required to provide
evidence of the need for the declaration and periodic updates
on the emergency's status.\29\
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\24\ See Protecting Our Democracy Act, H.R. 5314, 117th Cong.
(2021).
\25\ See Article One Act, S. 764, 116th Cong. (2019).
\26\ Id.
\27\ Id.
\28\ Id.
\29\ Id.
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However, the majority of proposed reforms do not include
reforms to the International Emergency Powers Act (IEEPA) (P.L.
95-223)--the most commonly used emergency power.\30\ IEEPA is a
statutory power that may be triggered by a declaration under
the NEA, upon which 65 of the 71 declarations rely.\31\ IEEPA
allows the President to impose economic sanctions on a person
or entity when there is an ``unusual and extraordinary threat,
which has its source in whole or substantial part outside the
United States, to the National security, foreign policy, or
economy of the United States.'' \32\
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\30\ Christopher A. Casey et. al., Cong. Rsch. Serv. (R45618), The
International Emergency Economic Powers Act: Origins, Evolution, and
Use, (Mar. 25, 2022), available at https://crsreports.congress.gov/
product/pdf/R/R45618.
\31\ See Andrew Boyle, Checking the President's Sanctions Powers,
Brennan Center for Justice, (June 10, 2021), available at https://
www.brennancenter.org/our-work/policy-solutions/checking-presidents-
sanctions-powers.
\32\ Id.
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Of the six NEA declarations that did not invoke IEEPA,
three are still active today: regulation of the anchorage and
movement of vessels with respect to Cuba, a 9/11 declaration
for terrorist attacks, and the regulation of the anchorage and
movement of Russian-affiliated vessels to United States
ports.\33\
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\33\ See Declared Emergencies, supra note 20.
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III. POTENTIAL FOR PRESIDENTIAL ABUSE OF POWER
There are over 120 enhanced statutory powers granted to the
President under a NEA National emergency and an additional 13
powers that become available when Congress declares a National
emergency.\34\ These emergency powers span across the
government, and currently cannot be terminated without a veto-
proof super majority.\35\ Examples of emergency powers the
President may invoke range from removing biological or chemical
agents bans for testing such weapons on human subjects; closing
borders and expelling foreigners; taking over communication
channels as well as production and distribution of goods
seized; and determining the government should control the
domestic transportation network.\36\ While many of these powers
have never been exercised, they remain at the President's
disposal with little ability by Congress to provide
accountability. This hearing is not only intended to examine
the purpose for the NEA, but also analyze Congressional
oversight of Presidential emergency powers and potential
solutions to ensure accountability to prevent abuses of power.
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\34\ See Elsea CRS, supra note 15.
\35\ Id.
\36\ See e.g., 50 U.S.C. Sec. 1515; 19 U.S.C. Sec. 1318; 42
U.S.C. Sec. 265; 47 U.S.C. Sec. 606; 19 U.S.C. Sec. 1318; 49 U.S.C.
Sec. 114.
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IV. WITNESSES
LMr. Soren Dayton, Director of Governance,
Niskanen Center
LMr. Satya Thallam, Policy Advisor, Arnold &
Porter
LMs. Elizabeth Goitein, Senior Director, Liberty &
National Security Program, Brennan Center for Justice at New
York University School of Law
NEVER-ENDING EMERGENCIES--AN EXAMINATION OF THE NATIONAL EMERGENCIES
ACT
----------
WEDNESDAY, MAY 24, 2023
House of Representatives,
Subcommittee on Economic Development, Public
Buildings, and Emergency Management,
Committee on Transportation and Infrastructure,
Washington, DC.
The subcommittee met, pursuant to call, at 10:03 a.m., in
room 2167 Rayburn House Office Building, Hon. Scott Perry
(Chairman of the subcommittee) presiding.
Mr. Perry. Good morning. The Subcommittee on Economic
Development, Public Buildings, and Emergency Management will
come to order.
I ask unanimous consent that the chairman be authorized to
declare a recess at any time during today's hearing. Without
objection, so ordered.
The Chair also asks unanimous consent that Members not on
the subcommittee be permitted to sit with the subcommittee at
today's hearing and ask questions. Without objection, so
ordered.
As a reminder, for Members who wish to insert a document
into the record, please also email it to
DocumentsTI@mail.house.gov.
The Chair now recognizes himself for the purposes of an
opening statement for 5 minutes.
OPENING STATEMENT OF HON. SCOTT PERRY OF PENNSYLVANIA,
CHAIRMAN, SUBCOMMITTEE ON ECONOMIC DEVELOPMENT, PUBLIC
BUILDINGS, AND EMERGENCY MANAGEMENT
Mr. Perry. I want to thank our witnesses for being here
today to discuss the National Emergencies Act, the NEA, and the
Presidential powers associated with it. This is the first time
this subcommittee has held a hearing to examine the NEA, and I
hope it will be useful for Members to evaluate potential
reforms to the NEA, which might be borne out of this hearing on
both sides of the aisle.
The NEA was enacted by Congress in 1976 to provide a
framework for Congress to provide oversight and accountability
of Presidential emergency powers. The law's intent was to allow
Congress the ability to review and terminate the President's
use of over 120 emergency powers scattered throughout the
United States Code.
Unfortunately, the mechanisms put in place by Congress were
watered down after the Supreme Court case, United States v.
Chadha, which resulted in the current requirement that Congress
must pass a joint resolution and that it must be signed by the
President--the very person Congress wants to hold accountable.
In effect, this means any check on the President's use of
some of these extraordinary powers needs a supermajority to
overcome a veto. The NEA also directs Congress to review
declarations every 6 months.
However, there are currently 41 ongoing emergency
declarations under the NEA that date back to the Carter
administration which Congress has not actively reviewed. I say
``actively,'' like--I don't think they have review that--well,
I probably shouldn't have said ``actively.'' Anyhow.
In fact, the only time Congress has effectively terminated
an emergency was earlier this year with the passage of House
Joint Resolution 7, which terminated the COVID-19 emergency
declaration. This was only after President Biden agreed to end
the declaration, signing the resolution last month.
It is absolutely beyond time that we look closer at the
Presidential powers authorized for such declarations that we
have allowed to continue indefinitely. It is also time we get a
handle on the funding associated with these declarations and
where the statutorily required expenditure reports are going,
if they are going anywhere, if they are even being produced.
It is not clear whether and to whom the required
expenditure reports under the NEA have been sent or produced.
There is also no definition for an emergency under the NEA,
and unfortunately, in Congress, that is a recipe for chicanery.
The President can declare an emergency for anything he or she
deems to be an emergency. There is so much risk associated with
this, and virtually no checks for accountability.
The NEA can unlock over 120 statutory emergency powers,
some of which seem mundane, but others range from commandeering
the domestic transportation network, to taking over
communication channels and distribution of goods, to waiving
restrictions on human testing of biological and chemical
weapons.
The document here [indicating ``A Guide to Emergency Powers
and Their Use,'' by the Brennan Center for Justice] lists pages
and pages of authorities buried throughout the code that the
President can trigger by declaring an emergency under the
National Emergencies Act. Do we know the implication of all
these laws, not to mention the unaccounted-for funding that has
little to no congressional oversight? I would just say no.
Probably not even a little. I mean, there might be some
complaints, but other than that, practically, we have none.
I look forward to hearing from our panel today on their
thoughts on the risks associated with the NEA and potential
solutions for Congress to pursue to finally check executive
powers when it comes to these emergencies.
[Mr. Perry's prepared statement follows:]
Prepared Statement of Hon. Scott Perry, a Representative in Congress
from the Commonwealth of Pennsylvania, and Chairman, Subcommittee on
Economic Development, Public Buildings, and Emergency Management
I want to thank our witnesses for being here today to discuss the
National Emergencies Act (NEA), and the presidential powers associated
with it. This is the first time this Subcommittee has held a hearing to
examine the NEA, and I hope it will be useful for Members to evaluate
potential reforms to the NEA.
The NEA was enacted by Congress in 1976 to provide a framework for
Congress to provide oversight and accountability of presidential
emergency powers. The law's intent was to allow Congress the ability to
review and terminate the President's use of over 120 emergency powers
scattered throughout the United States Code.
Unfortunately, the mechanisms put in place by Congress were watered
down after the Supreme Court case, United States v. Chadha, which
resulted in the current requirement that Congress must pass a joint
resolution and that it must be signed by the President--the very person
Congress wants to hold accountable.
In effect, this means any check on the President's use of some of
these extraordinary powers needs a super-majority to overcome a veto.
The NEA also directs Congress to review declarations every six months.
However, there are currently 41 ongoing emergency declarations
under the NEA, that date back to the Carter Administration, which
Congress has not actively reviewed.
In fact, the only time Congress has effectively terminated an
emergency was earlier this year, with the passage of House Joint
Resolution 7, which terminated the COVID-19 emergency declaration. And,
this was only after President Biden agreed to end the declaration,
signing the resolution last month.
It's time we look closer at the presidential powers authorized for
such declarations that we have allowed to continue indefinitely. It's
also time we get a handle on the funding associated with these
declarations and where the statutorily required expenditure reports are
going.
It is not clear whether and to whom the required expenditure
reports under the NEA have been sent. There is also no definition for
``emergency'' under the NEA. The President can declare an emergency for
anything he deems to be an ``emergency.''
There is so much risk associated with this and virtually no checks
or accountability. The NEA can unlock over 120 statutory emergency
powers, some of which seem mundane, but others range from commandeering
the domestic transportation network, to taking over communication
channels and distribution of goods, to waiving restrictions on human
testing of biological and chemical weapons.
I look forward to hearing from our panel today on their thoughts on
the risks associated with the NEA and potential solutions for Congress
to pursue to finally check the President's powers when it comes to
these emergencies.
Mr. Perry. I now recognize the ranking member, Ms. Titus,
for 5 minutes for her opening statement.
OPENING STATEMENT OF HON. DINA TITUS OF NEVADA, RANKING MEMBER,
SUBCOMMITTEE ON ECONOMIC DEVELOPMENT, PUBLIC BUILDINGS, AND
EMERGENCY MANAGEMENT
Ms. Titus. Thank you very much, Mr. Chairman. I also want
to thank our witnesses for being here, and you, for holding
this first hearing on the important topic on the National
Emergencies Act.
Proper implementation and oversight of the NEA of 1976 are
necessary to safeguard our democracy and protect our
institutions. Presidents are awarded great power in times of
national crises so they can make timely and decisive decisions
when Federal assistance is needed in a hurry. This power is
granted since Congress may not have enough time during a true
emergency to enact the authorities necessary to protect the
American public. It's not like we can get anything done in a
hurry, as we have seen in the last few days.
The national emergencies declared throughout our Nation's
history, however, haven't been terminated promptly, as was
mentioned by the chairman. In fact, most U.S. citizens have
lived their entire lives under some state of emergency, and at
least one national emergency has been active since 1979, and
there are, I repeat, 41 national emergencies in effect today.
The perpetual state of emergency that we live in may tempt
the President to use the powers he is granted by the National
Emergencies Act to circumvent the will of Congress. In theory,
Presidents of any party can abuse emergency powers.
But I would be remiss if I didn't mention my concern when
former President Trump abused the NEA to fund the construction
of a wall at the southern border without congressional
authorization or appropriations. In fact, the former
President's very first veto in office was on the congressional
resolution attempting to block this misuse of the NEA.
Before I became a Member of Congress, I taught American
Government classes at the University of Nevada, Las Vegas. So,
we spent a lot of time talking about separation of powers and
how Article I of our Constitution recognizes Congress first. It
enshrines Congress' power to make laws, controls the power of
the purse, and checks the power of the President. In fact, it
is Congress' responsibility to affirm its status as a coequal
branch of Government and ensure that the system of checks and
balances is functioning as intended.
This discussion is a matter of principle over politics, a
constitutional issue over things that are more fleeting. I hope
that we can set partisan policy disagreements aside and focus
on oversight and reforms that could be necessary to safeguard
our Constitution and democracy during today's hearing, and we
rely on the experts for their suggestions. I hope this will
reignite congressional oversight of national emergencies the
way it was intended.
I thank you all for your time and previous contributions to
this important topic, and I look forward to your testimony as
it informs us of what we might do to evaluate certain proposed
reforms.
[Ms. Titus' prepared statement follows:]
Prepared Statement of Hon. Dina Titus, a Representative in Congress
from the State of Nevada, and Ranking Member, Subcommittee on Economic
Development, Public Buildings, and Emergency Management
Thank you, Mr. Chairman. I want to thank our witnesses for joining
us today for this Subcommittee's very first hearing on an important
topic--the National Emergencies Act (NEA).
Proper implementation and oversight of the National Emergencies Act
of 1976 are necessary to safeguard our democracy and protect our
institutions. Presidents are awarded great power in times of national
crises, so they can make the timely and decisive decisions when federal
assistance is needed. This power is granted since Congress may not have
enough time during a true emergency to enact the authorities necessary
to protect the American public.
The national emergencies declared throughout our nation's history,
however, have not been terminated promptly. In fact, most U.S. citizens
have lived their entire lives under a state of emergency, and at least
one national emergency has been active since 1979. Today, there are 41
active national emergencies.
The perpetual state of emergency that we live in today may tempt
the President to use the powers he is granted by the National
Emergencies Act to circumvent the will of Congress. In theory,
Presidents of any political party could abuse emergency powers. I would
be remiss not to mention my concern when former President Trump abused
the National Emergencies Act to fund the construction of a wall at the
southern border without congressional authorization or appropriations.
In fact, the former President's very first veto in office was on the
congressional resolution attempting to block this misuse of the NEA.
Before I became a Member of Congress, I taught American government
classes at the University of Nevada, Las Vegas (UNLV). So, I know all
too well that Article One of our Constitution enshrines Congress' power
to make laws, control the power of the purse, and check the power of
the President. In fact, it is Congress' responsibility to affirm its
status as a co-equal branch of government and ensure the system of
checks and balances is functioning as intended.
This discussion is a matter of principle over politics. I hope that
we can set partisan policy disagreements aside and focus on oversight
and reforms that may be necessary to safeguard our constitution and
democracy during today's hearing, and to reignite congressional
oversight of national emergencies as it was originally intended.
I thank our witnesses for their time and previous contributions to
this important topic. I look forward to your testimony as it informs
this Subcommittee's efforts to examine the National Emergencies Act and
to better evaluate proposed reforms.
Ms. Titus. I thank the chairman, and I yield back.
Mr. Perry. The Chair thanks the gentlelady from Nevada.
The Chair now recognizes the ranking member of the full
committee, Mr. Larsen, for 5 minutes.
OPENING STATEMENT OF HON. RICK LARSEN OF WASHINGTON, RANKING
MEMBER, COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
Mr. Larsen of Washington. Thank you. I thank Chair Perry
and Ranking Member Titus for calling today's hearing.
We are here to discuss safeguarding our democracy,
strengthening our democratic institutions, and Congress'
responsibility to maintain its Article I power as a coequal
branch of Government.
So, regardless of the sitting President's political party,
Congress needs to conduct oversight of emergency powers used by
the executive branch.
Now, I will say, in reviewing the testimony from today's
panel, it was eye-opening and jaw-dropping: the breadth of the
President's powers and the struggle that Congress has been
through since 1976 in order to try to define a fence, if you
will, around those powers.
A core tenant of the Constitution is a system of checks and
balances, which ensures that no one branch of Government has
too much control or power. That includes checking the powers
granted to a President during national emergencies.
This Nation does grant extraordinary powers to the
President during national emergencies. Presidents can determine
what rises to the level of a national emergency and declare
such emergency without the approval of Congress. A national
emergency declaration, in turn, unlocks more than 130 standby
authorities for the President, even if they are not relevant to
the emergency at hand.
Congress conducted extensive oversight regarding the
President's authority to declare emergencies in 1973, and a
Senate special committee was appointed to investigate concerns
that national emergencies were active for too long and that no
congressional mechanism existed to terminate them. I was
surprised they actually set this up to look at national
emergency powers that were established under the Korean War and
then discovered there was a lot more out there, which caused a
lot of concern for Congress.
So, these emergencies were active for too long, and no
congressional mechanism existed to terminate them. So, the
committee report resulted in the passage of the National
Emergencies Act, which formalized the emergency powers of the
President, authorized Congress to biannually review these
emergencies, and then vote to terminate Presidentially declared
emergencies as well, which the Supreme Court in 1983 removed as
an unconstitutional legislative veto.
But today, we exist in arguably what the National
Emergencies Act was designed to avoid: a perpetual state of
emergency. Currently, 41 separate Presidential national
emergencies are in effect. The oldest one pertains to sanctions
against Iran, which has been renewed annually since 1979.
I am not disputing the subject matter of any of these
national emergencies is not important. I am only arguing that--
after reading testimony and thankfully calling this hearing--
that we do have an opportunity to examine whether addressing
these issues in a manner that gives the President indefinite
emergency level powers is appropriate.
I look forward to discussing what an appropriate balance
is. Congress is a deliberative body. It does take us time to
deliberate and get things done. I can understand why a
President needs authority to react quickly in a true emergency
and protect the public because Congress is slow to react.
But in the long term, emergency powers should not be a
convenience that is used to circumvent congressional action.
And we will argue and debate what is appropriate and what is
not appropriate. Again, it is really an issue of when a
national emergency is declared by the President, what can
Congress do to put some bounds around that?
So, the witnesses are clearly highly qualified, much more
than me, to discuss this issue for us. But as I always say, I
am not an expert. I am a Member of Congress, and I rely on the
experts to close that gap. So, I look forward to today's
hearing and hearing from our witnesses.
[Mr. Larsen of Washington's prepared statement follows:]
Prepared Statement of Hon. Rick Larsen, a Representative in Congress
from the State of Washington, and Ranking Member, Committee on
Transportation and Infrastructure
Thank you, Chairman Perry and Ranking Member Titus, for calling
today's hearing on ``Never-Ending Emergencies--An Examination of the
National Emergencies Act.''
We are here to discuss safeguarding our democracy, strengthening
our democratic institutions and Congress' responsibility to maintain
their Article One power as a co-equal branch of government.
Regardless of the sitting president's political party, Congress
needs to conduct oversight of emergency powers used by the executive
branch.
In reviewing the testimony from today's panel, it was eye-opening
and jaw-dropping--the breadth of the President's powers and the
struggle Congress has been through since 1976 in order to try to define
a fence, if you will, around these powers.
A core tenant of the Constitution is the system of checks and
balances which ensures that no one branch of government has too much
control or power.
This includes checking the powers granted to a President during
national emergencies.
This nation does grant extraordinary power to a President during
national emergencies. Presidents can determine what rises to the level
of a national emergency and declare such emergency without the approval
of Congress.
A national emergency declaration in turn unlocks more than 130
standby authorities for the President--even if they are not relevant to
the emergency at hand.
Congress conducted extensive oversight regarding the President's
authority to declare national emergencies in 1973.
A Senate Special Committee on National Emergencies and Declared
Emergency Powers was appointed to investigate concerns that national
emergencies were active for too long and that no congressional
mechanism existed to terminate them. I was surprised they actually set
this up to look at national emergency powers that were established
under the Korean War and then discovered there was a lot more out
there, which caused a lot of concern for Congress. These emergencies
were active for too long and no Congressional mechanism existed to
terminate them.
The Special Committee's report resulted in passage of the National
Emergencies Act, which formalized the emergency powers of the
President, authorized Congress to biannually review national
emergencies, and if necessary, vote to terminate Presidentially
declared national emergencies, which the Supreme Court in 1983 removed
as an unconstitutional veto.
Today we exist in what arguably the National Emergencies Act was
designed to avoid--a perpetual state of emergency.
There are currently 41 separate presidential national emergency
declarations in effect. The oldest declaration, which pertains to
sanctions against Iran, has been renewed annually since 1979.
I am not disputing that the subject matter of these national
emergencies may be highly important.
However, we must examine whether addressing these issues in a
manner that gives the President indefinite emergency level powers is
appropriate.
I look forward to discussing an appropriate balance.
Congress is a deliberative body.
The President needs the authority to react quickly in a true
emergency and protect the public. Congress, by nature, may be too slow
to react.
But in the long-term, emergency powers should not become a
convenience that is used to circumvent congressional action.
The witnesses on our panel today are highly qualified to discuss
this issue. As I always say, I am not an expert, I am a Member of
Congress and I rely on the experts to close that gap. I appreciate the
service they have demonstrated by dedicating so much time to ensuring
Congress' Article One powers are preserved and that our democracy is
safeguarded.
My thanks again to today's witnesses. I look forward to hearing
your testimony.
Mr. Larsen of Washington. With that, I yield back.
Mr. Perry. The Chair thanks the ranking member.
The Chair would now like to welcome our witnesses to thank
them for being here today.
Briefly, I would like to take a moment to explain our
lighting system to our witnesses. There are three lights right
in front of you. The green means go. Yellow means you are going
to be running out of time shortly, and red means, like, you've
got to end it, all right?
We would also just encourage you to pull the mic right in
front when you are speaking because some of us flew a
helicopter for 30 years and can't hear real well. So, it is
important that you are in the mic.
I ask unanimous consent that the witnesses' full statements
be included in the record. Without objection, so ordered.
As your written testimony has been made part of the record,
the subcommittee asks that you limit your oral remarks to 5
minutes.
With that, Mr. Dayton, you are recognized for 5 minutes for
your testimony.
TESTIMONY OF SOREN DAYTON, DIRECTOR OF GOVERNANCE, NISKANEN
CENTER; SATYA THALLAM, POLICY ADVISOR, ARNOLD & PORTER; AND
ELIZABETH GOITEIN, SENIOR DIRECTOR, LIBERTY AND NATIONAL
SECURITY PROGRAM, BRENNAN CENTER FOR JUSTICE AT NEW YORK
UNIVERSITY SCHOOL OF LAW
TESTIMONY OF SOREN DAYTON, DIRECTOR OF GOVERNANCE, NISKANEN
CENTER
Mr. Dayton. Thank you, Chairman Perry and Ranking Member
Titus, for inviting me to testify on the National Emergencies
Act.
Emergencies present a critical issue of checks and balances
in the constitutional balance of power. Congress makes laws and
appropriates funds. The President implements laws and spends
money. In emergencies, though, Congress gives the President and
the executive branch fairly broad leeway because of the need to
act quickly. But that doesn't mean Congress wants to give the
President unlimited power.
Members of Congress want a say and have an important role
in reviewing, supporting, or curtailing the President's
execution of delegated powers. Congress found a solution nearly
50 years ago in the National Emergencies Act. The NEA provides
a generalized framework for handling emergency powers separate
from the national disaster emergency system, also under this
committee's jurisdiction. Note that there is a separate public
health emergency system that we are not talking about today.
When the President declares an emergency, it unlocks other
laws that provide powers, laws written by Congress, delegating
congressional powers that the President can use to address that
emergency. The NEA gives the President broad flexibility, but
required clear reporting, and empowered Congress to call a halt
through a legislative veto. Any Member of Congress can demand a
vote to block the President's action via concurrent resolution.
Consideration of these resolutions was protected via
special procedures, and the President could not block that
termination. But that system broke in 1983. The Supreme Court
decision INS v. Chadha struck down the legislative veto that
Congress had relied on to review emergencies. Without that
check, the delegation of emergency powers was transformed into
something far broader. A President could continue the emergency
unless Congress could muster a veto-proof majority in both
Chambers.
Indeed, since Chadha, there has been virtually no check on
the President's national emergency powers. Members of both
parties complain about perceived abuses of executive powers by
the President of a different party, but they are with little
tools to take action.
In 2019, Congress started to exercise its review power. The
NEA requires that Congress shall meet for every 6 months to
review emergencies, but it never did until 2019, when President
Trump declared a national emergency at the southern border.
Congress voted two times on a bipartisan, bicameral basis to
end the emergency, and in both cases, President Trump vetoed
the resolution.
Under the original NEA, President Trump would not have had
the opportunity to veto. Instead, President Biden ended the
emergency on his first day in office. President Trump also
declared an emergency and a separate public health emergency
over COVID in March 2020. That emergency was unchallenged until
March 2022 and terminated earlier this year.
Last year, the Senate voted to terminate the COVID
emergency in March, and then again in November, and this year,
the House voted with 219 votes and the Senate with 68 votes to
terminate the COVID emergency. And ultimately, under some
political pressure, President Biden ultimately agreed to
terminate the COVID emergency.
Prior to this year, emergencies had only been terminated by
Presidents acting alone, and only for the second time in
history has Congress acted like the National Emergencies Act
imagined it might. But that does not mean the system works. It
is still much harder for Congress to exert its review powers
over emergencies, much harder than was intended in 1976.
Chadha flipped the logic of the NEA completely. What
started as exceptional uses of powers reviewed by Congress is
now a system where the President can and does maximize power up
until there is sufficient public outcry to require him to stop.
The current structure of that system is broken by Chadha
and treats Congress as a bystander. You all are left to cheer
or jeer the President, and you are left to cheer or jeer the
courts in the inevitable litigation. But that is not what
Congress was meant to do.
The good news is that there is a solution to restore a
proper balance of power over national emergencies. I am going
to let my colleagues on the panel speak about the existing
powers and the solutions to fix it.
However, the bipartisan votes against emergencies have been
matched by a bipartisan desire to fix the system. Frankly, it
has been inspiring to see Members of Congress work together in
a time of high-partisan tension to show real agency to restore
the power to Congress.
My written testimony provides greater details on all of
these questions and recent legislative reform efforts. Thank
you for your time, and I look forward to questions.
[Mr. Dayton's prepared statement follows:]
Prepared Statement of Soren Dayton, Director of Governance,
Niskanen Center
Thank you Chairman Perry and Ranking Member Titus for inviting me
to discuss national emergency powers and opportunities for reform.
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 money. During national emergencies, Congress
rightly gives the president and the executive branch broad leeway
because of the need to act quickly or to make specific decisions. But
that doesn't mean Congress wants to give the president unlimited power;
it still wants a say and to be able to step in if it thinks the
president is acting improperly.
Nearly fifty years ago, by passing the National Emergencies Act of
1976 (NEA), Congress created a framework for giving the president the
ability to operate flexibly in certain situations through broad
delegations, clear reporting to Congress, and the use of a legislative
veto for Congress to intervene and stop actions. Any member of Congress
could ask either the House or the Senate to vote to block the
president's action via a concurrent resolution. This system was applied
to national emergencies, war powers, and arms sales.
However, the Supreme Court's 1983 decision in INS v. Chadha \1\
removed that tool when it determined that Congress could not use a so-
called ``legislative veto'' on decisions made pursuant to powers
Congress had delegated to the executive. This meant that Congress's
built-in check on national emergency powers was no longer viable and
transformed its delegation of emergency powers into something far
broader than intended.
---------------------------------------------------------------------------
\1\ 462 U.S. 919 (1983).
---------------------------------------------------------------------------
Indeed, since Chadha, there have been virtually no checks on the
president's national emergency powers. Typically, members of both
parties complain about perceived abuse of executive powers by the
president of a different party, and more recently with emergency
powers. Fortunately, there are simple reforms that Congress can
institute to ensure a proper balance of power between Congress and the
president on national emergencies--and to restore Congress's original
intent when it developed a fail-safe to address executive overreach.
The core structure of the reform is straightforward: the president
gives clear declarations of the use of delegated authorities, the
authorities sunset automatically, and expedited procedures give
Congress the ability to extend those authorities in a timely manner.
These reforms have broad bicameral and bipartisan support, and would
restore the kind of necessary checks that Congress originally enacted
in its original 1976 bill.
Congress has done more to address the problems with the NEA in the
last three years than it has in the 39 years since Chadha was decided--
and it has done so on a bipartisan and bicameral basis. In addition,
reforming the NEA can serve as a model in Congress's broader effort to
rebalance the powers of the legislative and executive branches.\2\
---------------------------------------------------------------------------
\2\ Mort Halperin & Soren Dayton, Can Congress Reclaim Authority It
Has Handed Over to the President? It's Trying., Wash. Post (Aug. 20,
2020), https://tinyurl.com/2p88uabr.
---------------------------------------------------------------------------
The Structure and Context of the National Emergencies Act of 1976
When Congress passed the NEA, it explicitly delegated powers to the
president while also preserving Congress's ready ability to terminate a
particular action at any time. The president would declare an emergency
and state which authorities he proposed to use. At the same time, this
declaration would unlock expedited procedures that would allow any
member of the House or Senate to bring a concurrent resolution to the
floor to terminate the emergency.
The NEA was part of a broader pattern during the 1970s of Congress
asserting its right to a legislative veto and its powers vis a vis the
executive branch. Like the NEA, the War Powers Resolution of 1973 and
the Arms Export Control Act of 1976 all used a legislative veto using a
concurrent resolution. And in all cases, the statutes provided
expedited procedures so that any member of the House or the Senate
could force a vote on the executive branch actions with the real
possibility of terminating the action.
By the mid-1970s, there were well-established frameworks to enable
the executive branch to make flexible decisions, ensure that Congress
was informed, and empower Congress to disagree with certain actions.
The NEA, along with statutes regarding war powers and arms sales,
employed just one of several different forms of legislative veto. These
bills were the strongest, requiring concurrent action by both chambers
of Congress. There were also single-chamber vetoes and even veto
actions taken by the chairs and ranking members of committees.
The Chadha case actually emerged from an exercise of a single-
chamber veto, in the Immigration and Nationality Act (INA).\3\ Under
the INA, certain adjudicatory decisions taken by the executive branch,
in this case a decision to suspend a deportation proceeding, were
reported to Congress. If either chamber did not pass a resolution
rejecting that decision by the completion of that Congress, the
executive branch's decision would take effect.
---------------------------------------------------------------------------
\3\ Immigr. & Nat'y Act Sec. 244(c)(2), 8 U.S.C. Sec. 1254(c)(2)
(1976).
---------------------------------------------------------------------------
The Congressional Budget and Impoundment Control Act of 1974
empowered Congress to block executive branch attempts to reprogram or
impound funds.\4\ The act gave Congress several ways to do this,
including passing a bill to rescind certain budget authority or
adopting a single-house resolution (of the kind later deemed
unconstitutional in Chadha) blocking a proposed deferral of budget
authority.\5\
---------------------------------------------------------------------------
\4\ Cong. Budget & Impoundment Control Act of 1974 Sec. Sec. 1012-
13, 31 U.S.C. Sec. Sec. 1402-03 (1974).
\5\ Id. Sec. 1012(b), 2 U.S.C. Sec. 683(b); id. Sec. 1013(b), 31
U.S.C. Sec. 1403(b) (1974).
---------------------------------------------------------------------------
The basic framework for all of these systems was that some part of
the executive branch would notify Congress about a desire to take an
action. In cases of urgent situations--for example national
emergencies, war powers, and potentially emergency arms sales--the
executive branch could act with some authorities before Congress acted.
All of these systems fell with Chadha.
How the Executive Branch Gained Power After Chadha
The 1983 Chadha decision destabilized that framework by essentially
ending the so-called legislative veto. The decision made clear that for
Congress to overrule executive branch action, it would require
``bicameralism and presentment.'' That is, both houses must pass a
resolution and the president must sign it (or have a veto overridden).
In the wake of Chadha, Congress adjusted certain statutes to
account for the ruling and the result was to significantly shift power
to the executive.
Under the statutes where Congress required a concurrent
resolution--namely for the NEA, War Powers Resolution, and Arms Export
Control Act--Congress modified the statute to require a joint
resolution. The difference, of course, is that the president would have
to sign a joint resolution of termination of his action or his veto
would need to be overruled. The threshold for Congress exerting its
will over a president who disagreed went from a simple majority to a
two-thirds supermajority in both chambers, effectively neutering
Congress's ability to push-back against executive action.
Some informal checks on executive overreach still remained. After
Chadha, some agencies voluntarily adopted policies or even regulations
to follow the previous procedures if they didn't require a full body of
Congress to act, merely a full committee or the chair or ranking member
of a committee. For example, a 2021 Congressional Research Service
report on Department of Defense (DOD) transfer and reprogramming
authorities noted:
While DOD regulation requires congressional prior approval of
certain reprogramming actions, the department does not view the
requirement as legally binding. The ability of Congress to
create legally binding prior approval requirements on
reprogramming actions may be limited by the 1983 U.S. Supreme
Court case Immigration and Naturalization Service (INS) v.
Chadha.\6\
---------------------------------------------------------------------------
\6\ Brendan McGarry, Cong. Rsch. Serv., IF11243, Defense Primer:
DOD Transfer and Reprogramming Authorities 2 (2021), https://
sgp.fas.org/crs/natsec/IF11243.pdf.
DOD simply decided to comply with the old system. However, the
---------------------------------------------------------------------------
report notes that Congress had a stake in the relationship:
Some observers may view approval requirements as practically
binding, however, because the annual appropriations process
provides a means for Congress to impose sanctions on violations
of comity and trust.\7\
---------------------------------------------------------------------------
\7\ Id. (emphasis omitted).
Because Congress continued to pass both appropriations bills and
the annual National Defense Authorization Act, Congress maintained a
degree of control by other means. Regular congressional action gave
Congress the power to enforce its prerogatives because the executive
branch needed things from Congress, in this case money and statutory
changes to the Department of Defense.
Fortunately, in the last three years, Congress has started
seriously to wrestle with the imbalance of power between Congress and
the executive branch created by the Chadha decision and its aftermath.
Congress has made particular progress on the national emergency
front in two ways: it has started to exercise Congressional review of
national emergencies and worked towards a bipartisan consensus for
reforms.
Congress Has Started To Review Emergencies
The National Emergencies Act imagined that Congress would meet
every six months to review existing emergencies and terminate those
that were no longer appropriate.\8\ Prior to 2019, Congress had not
actually ever voted on a resolution to terminate a national emergency.
---------------------------------------------------------------------------
\8\ National Emergencies Act, 50 U.S.C. Sec. 1622(b).
---------------------------------------------------------------------------
Now it has been used in two cases, generating bipartisan support to
terminate emergencies, namely the 2019 emergency declaration at the
southern border and the 2020 COVID emergency. These two emergencies
allow you to see how the system was intended to work, and how it broke
down after Chadha.
President Trump declared a national emergency with Proclamation
9844 \9\ on February 15, 2019 with respect to the southern border.
There were two resolutions in the 116th Congress that reached President
Trump. Both were vetoed, and the vetoes were sustained:
---------------------------------------------------------------------------
\9\ Declaring a National Emergency Concerning the Southern Border
of the United States. 84 Fed. Reg. 4949 (Feb. 20, 2019). https://
tinyurl.com/56h8w5nu.
---------------------------------------------------------------------------
H.J.Res.46, which passed the House 248-181, the Senate
59-41, and the vote to override the veto failed in the House 245-182.
S.J.Res.54, which passed the Senate 54-41, the House 236-
174, and the vote to override the veto failed 54-41.
Note that prior to Chadha, there would have been no veto, and the
emergency would have been terminated on March 14, 2019 when the Senate
passed H.J.Res.46. President Biden terminated the emergency on his
first day in office.\10\
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\10\ Termination of Emergency With Respect to the Southern Border
of the United States and Redirection of Funds Diverted to Border Wall
Construction. 86 Fed. Reg. 7225 (Jan. 27, 2021). https://tinyurl.com/
bdf5yfva.
---------------------------------------------------------------------------
President Trump also declared a national emergency with
Proclamation 9994 \11\ on March 13, 2020 on with respect to COVID. It
was renewed by President Biden on February 24, 2021,\12\ on February
18, 2022,\13\ and February 10, 2023.\14\
---------------------------------------------------------------------------
\11\ Declaring a National Emergency Concerning the Novel
Coronavirus Disease (COVID-19) Outbreak. 85 Fed. Reg. 15337 (Mar. 18,
2020). https://tinyurl.com/3pj39tev.
\12\ Continuation of the National Emergency Concerning the
Coronavirus Disease 2019 (COVID-19) Pandemic. 86 Fed. Reg. 11599 (Feb.
26, 2021). https://tinyurl.com/y2wz3uvz.
\13\ Continuation of the National Emergency Concerning the
Coronavirus Disease 2019 (COVID-19) Pandemic. 87 Fed. Reg. 10289 (Feb.
23, 2022). https://tinyurl.com/3b47549w.
\14\ Continuation of the National Emergency Concerning the
Coronavirus Disease 2019 (COVID-19) Pandemic. 88 Fed. Reg. 9385 (Feb.
14, 2023). https://tinyurl.com/4t6sen93.
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There were two resolutions in the 117th Congress and one in the
118th Congress that received votes and that would terminate the COVID
emergency:
S.J.Res.38 (in the 117th Congress), which passed the
Senate 48-47 and did not receive a vote in the House.
S.J.Res.63, which passed the Senate 61-37 and did not
receive a vote in the House.
H.J.Res.7 (in the 118th Congress), which passed the House
229-197, the Senate 68-23, and was signed by President Biden on April
10, 2023.
The COVID emergency is the first national emergency since the NEA
was passed in 1976 that was terminated because of Congressional action.
Even then, it required the assent of the President to accomplish that
termination.
The original NEA would not have required that. Fortunately, there
are ideas for reform that would return power to Congress and provide a
check on presidential power.
Reforms to the National Emergency Structure and Beyond
The basic structure of a comprehensive post-Chadha reform was clear
relatively soon after the 1983 decision. The core components were a
``sunset'' of authorities matched with expedited procedures that would
allow Congress to move quickly to ratify or reject presidential action.
In 1984, then-Sen. Joe Biden wrote in the Syracuse Law Review that one
key response to Chadha should be the increased use of a ``sunset''
mechanism that allows some powers automatically to lapse after a
specified period of time:
I believe that the American Bar Association was correct in
telling the Senate Judiciary Committee that sunset legislation
``is an idea whose time has come, gone, and [in light of the
Chadha decision] returned.'' \15\
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\15\ Sen. Joseph R. Biden, Jr., Who Needs the Legislative Veto?, 35
Syracuse L. Rev. 685, 690-91 (1984), https://tinyurl.com/2p879wj2.
Sen. Biden actually proposed a reform that sunset certain
authorities in S.2384, the Arms Export Reform Act of 1986.\16\ Sen.
Chuck Grassley was an original cosponsor.
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\16\ Arms Export Reform Act of 1986, S. 2834, 99th Cong. (1986),
https://tinyurl.com/4xbnb7py.
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And months after the Chadha decision, then First Circuit Judge
Stephen Breyer suggested a ``special fast track for special
confirmatory laws''--in other words, creating expedited procedures to
approve or confirm executive branch actions.\17\ Perhaps the most
detailed proposal was from John Hart Ely, a professor of constitutional
law at Harvard. In his 1993 book War and Responsibility, Ely laid out
detailed procedures for the legislative and executive branches around
war powers.\18\ Proposed reforms to the NEA are a somewhat stripped
down version of what Ely proposes, as emergencies don't implicate the
kinds of Article II powers that war powers do.
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\17\ Stephen Breyer, The Legislative Veto After Chadha, 72 Geo. L.
J. 785, 793 (1984), https://tinyurl.com/2p93vdva.
\18\ John Hart Ely, War and Responsibility: Constitutional Lessons
of Vietnam and Its Aftermath (1993).
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In the end, the core structure of these proposed reforms are built
on these two insights. When there is a clear delegation of authority to
the executive branch and a clear action taken by the executive branch
to activate those delegated powers, the following conditions should
apply:
1. Automatic sunset of those broad delegations;
2. Congressional action to confirm or renew the use of the
delegated powers in a specific case for a specific period of time with
expedited procedures in each chamber to ensure that Congress acts to
explicitly affirm or reject the use of delegated powers prior to the
sunset; and
3. Reporting and factual declarations about the justification for
and use of the powers.
That is, the core of any reform is the ``sunset'' that then-Sen.
Biden proposed alongside the ``fast track . . . confirmatory law'' that
Breyer proposed--with some reporting added so that Congress can have
the appropriate information to act quickly on underlying executive
action and follow its implementation.
This is a relatively straightforward change from the pre-Chadha
system. Congress must specify a period of time after which the
authorities will sunset. The NEA already had expedited procedures for
terminating national emergencies, so they can simply be adopted for a
joint resolution that would affirm rather than terminate.
There has been enormous bipartisan and bicameral work, and growing
consensus, on this issue:
In February 2019, a House Judiciary Subcommittee held a
hearing on this subject and showed the urgent need for reforms.\19\
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\19\ The National Emergencies Act of 1976: Hearing Before the
Subcomm. on the Const., Civ. Rts., and Civ. Liberties of the H. Comm.
on the Judiciary, 116th Cong. (2019), https://tinyurl.com/3v927mwx.
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A number of bills offering relatively similar fixes to
the national emergency situation were introduced, including the
bipartisan Guarding Congressional Authority Act (H.R.1410),\20\ the
Limiting Emergency Powers Act (H.R.1720), and a bicameral bill, the
Assuring that Robust, Thorough, and Informed Congressional Leadership
is Exercised Over National Emergencies Act (ARTICLE ONE) Act (H.R.1755
and S.764). The ARTICLE ONE Act became the basis for subsequent
legislating. It did the following:
---------------------------------------------------------------------------
\20\ Guarding Cong. Authority Act, H.R. 1410, 116th Cong. (2019),
https://tinyurl.com/2p8aw3md.
---------------------------------------------------------------------------
+ Automatically sunsetted a national emergency declaration after
30 days. It also sunsetted national emergencies after one year.
+ Required a ``joint resolution of approval'' to extend the
emergencies after the sunset.
+ Added some reporting requirements about authorities, monies
spent, and similar issues.
In July 2019, the Senate Homeland Security and
Governmental Affairs Committee (HSGAC) held a markup on the ARTICLE ONE
Act and reported it out of committee on an 11-2 vote, with all of the
Democrats voting in favor.\21\ The most important substantive change
was removing international economic emergencies under the International
Economic Emergency Powers Act (IEEPA) from the reform. This is
primarily because many of our international sanctions, such as those
now being imposed nearly daily on Russia, are issued under IEEPA.
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\21\ S. Rep. No. 116-159, at 5-6 (2019), https://tinyurl.com/
2ec9fbcb.
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In October 2019, 15 Senators, comprising 9 Republicans
and 6 Democrats, asked leadership for floor time to move forward on
this legislation.\22\
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\22\ Press Release, Sen. Mike Lee, Bipartisan Letter Urges
Leadership to Have Full Senate Consider ARTICLE ONE Act (Oct. 18,
2019), https://tinyurl.com/ye2a4esn.
---------------------------------------------------------------------------
In early 2020, House and Senate Democratic members of the
Budget and Appropriations Committees introduced the Congressional Power
of the Purse Act (CPPA).\23\ This legislation included the NEA reforms
that had been approved by HSGAC the preceding year with some small
technical improvements and the addition of House expedited procedures.
(The CPPA was also included as Title V of the Protecting Our Democracy
Act.\24\)
---------------------------------------------------------------------------
\23\ Cong. Power of the Purse Act, H.R. 6628, 116th Cong. (2020),
https://tinyurl.com/52me9ptm; see Staff of H. Comm. on the Budget,
116th Cong., Section-by-Section Analysis: Congressional Power of the
Purse Act (2020), https://tinyurl.com/4ja2zmz8 (noting that CPPA Sec.
301 ``provides that, with the exception of emergencies under the
International Emergency Economic Powers Act (IEEPA), an emergency
declared by the President shall automatically cease after 30 days
unless Congress expressly approves the declaration. This will require
both Houses affirmatively to approve of an emergency, flipping the
current default that resulted from the Supreme Court's decision in INS
v. Chadha in which both Houses must affirmatively disapprove of an
emergency with sufficient votes to override a veto. This section also
provides that individual statutory emergency authorities associated
with a non-IEEPA emergency declaration shall cease unless approved by
Congress during the 30-day period, even if Congress approves the
underlying declaration.'').
\24\ Protecting Our Democracy Act, H.R. 8363, 116th Cong., tit. V
(2019), https://tinyurl.com/ykvkr58f.
---------------------------------------------------------------------------
The HSGAC bill was offered as an amendment to the 2020
National Defense Authorization Act in the Senate with bipartisan
support, including from Sens. Portman, Peters, Leahy, Lee, Udall,
Toomey, Cornyn, and Johnson.\25\ It did not receive a vote.
---------------------------------------------------------------------------
\25\ S. Amdt. 2477 to S. Amdt. 2301 to Nat'l Def. Authorization Act
for Fiscal Year 2021, S. 4049, 116th Cong. (2020), https://tinyurl.com/
2p842ksf.
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In 2021, the ARTICLE ONE Act was included in an omnibus
national security reform package called the National Security Reforms
and Accountability Act (H.R.5410) \26\ in the House, led by Chairman
McGovern and Rep. Peter Meijer. In the Senate, Sens. Murphy and Lee
introduced a nearly identical version of that bill as the National
Security Powers Act (S.2391).\27\
---------------------------------------------------------------------------
\26\ Press Release, Rep. Jim McGovern, McGovern, Meijer Lead
Introduction of Sweeping New Legislation to Reassert Congressional
Power Over National Security (Sept. 30, 2021), https://tinyurl.com/
54z5zpyj (noting that ``[t]heir bipartisan bill aims to recalibrate the
balance of power between the president and congress by reclaiming
congressional oversight of arms sales, emergency declarations, and the
use of military force'').
\27\ Press Release, Sen. Chris Murphy, Murphy, Lee, Sanders
Introduce Sweeping, Bipartisan Legislation to Overhaul Congress's Role
in National Security (July 20, 2021), https://tinyurl.com/mw3y9xtt.
---------------------------------------------------------------------------
The Protecting Our Democracy Act was re-introduced in
October 2021 \28\ A bipartisan amendment offered by Reps. McGovern,
Meijer, and DeFazio was adopted to bring the national emergency
provisions of the Protecting Our Democracy Act and the National
Security Reforms and Accountability Act into closer alignment.\29\
---------------------------------------------------------------------------
\28\ Press Release, Rep. Adam Schiff, House Democrats Introduce the
Protecting Our Democracy Act to Restore, Strengthen, and Protect Our
Democracy (Sept. 21, 2021), https://tinyurl.com/2p8f5d5x (noting that
NEA reform text in bill ``[i]mposes a limit on Presidential
declarations of emergencies and any powers triggered by such
declarations unless extended by a vote of the Congress'').
\29\ H.Amdt. 146, subtitle c to the Protecting Our Democracy Act,
H.R.5314, 117th Cong. (2021), https://tinyurl.com/3cmrfjbd.
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In 2022, a House Judiciary Subcommittee held another
hearing.\30\
---------------------------------------------------------------------------
\30\ Examining Potential Reforms of Emergency Powers: Hearing
Before the Subcomm. on the Const., Civ. Rts., and Civ. Liberties of the
H. Comm. on the Judiciary, 117th Cong. (2022), https://tinyurl.com/
muz4s3y9.
It's clear that there is a strong bipartisan consensus on this
important issue.
Thank you Chairman Perry and Ranking Member Titus for calling this
hearing and I urge you and all members to work to translate that
support into legislative action and pass national emergency reform this
year.
Mr. Perry. The Chair thanks Mr. Dayton.
The Chair now recognizes Mr. Thallam for 5 minutes for your
testimony.
TESTIMONY OF SATYA THALLAM, POLICY ADVISOR,
ARNOLD & PORTER
Mr. Thallam. Chairman Perry, Ranking Member Titus, members
of the committee, thank you so much for inviting me here.
My name is Satya Thallam. I am currently a policy advisor
at the law firm of Arnold & Porter and a senior fellow with the
Foundation for American Innovation. I should note that I am
here representing my own views and not those of any employer or
client.
I will forgo restating much of what is in my written
testimony and what has and will be said by my esteemed
copanelists and just emphasize some remarks on a couple of
points.
First, the National Emergencies Act basically itself is a
fairly thoughtful solution contemplated to resolve a problem of
Congress' own making. Like many things in both executive and
congressional practice, individual, sometimes one-time,
circumstances prompted one-time responses. But over time, those
policy responses build up without any systematic
reconsideration of their total effect.
Indeed, powers meant to be exercised only in the case of an
emergency have been observed since before the country's
founding. Indeed, Hamilton in ``The Federalist Papers'' speaks
of powers needed to address, quote, ``national exigencies.'' Of
course, the word ``emergency'' does not appear in the
Constitution, and yet Congress, as the sole lawmaking branch,
has deemed it necessary to grant emergency powers across
hundreds of duly enacted statutes going back decades.
The conceit being that the executive, an execution of the
law in the public interest, will need to respond to uniquely
emergency situations, though that delegation should be cabined
by congressional say.
So, I would note, although the NEA is badly in need of an
update owing to the unforeseen judicial decision, its basic
underlying structure is sound, and it is appropriate for
Congress to reexamine it to better assert its Article I
prerogative.
Second, a conceptional note. And if you will bear with me,
a kind of extended and tortured metaphor. But think of the
National Emergencies Act not as the direct grant of the
emergency power itself, but as a key which unlocks the vault in
which is enclosed the actual instruments of emergency response.
That is, Congress, when it authorizes through other statutes
emergency powers, adds to the tools in that vault, and by
declaring an emergency, the President is then able to access
these powers.
The problem, then, is that there is no timer on this vault,
and there is no plausible way to take back the key.
My recommendation for this committee and your colleagues is
to consider how to reestablish workable limits on both the
duration and scope of declared emergencies.
Another central conceit. Emergencies are, by definition,
unpredictable. But they should also be, by definition, time-
limited and fairly self-evident. Therefore, Congress does not
need to run down the impossible task of proscribing every
possible emergency, but rather, ensure it has the means to have
its say, with respect to emergency declarations and the
intended emergency powers, based on those generalized aspects.
Finally, although I don't see it as my role here today to
endorse or discourage any specific proposal that may be
pending, I will leave you with this: In my time at a Senate
committee leading the effort to pass a particular proposal that
was on the table at the time, a proposal that passed out of
committee nearly unanimously, Democrats and Republicans on that
committee were actually motivated by different emergency powers
and their use and found different emergency uses distasteful,
but they came together to support a single bill which addressed
them all. That is as it should be.
And the sweet spot for any reform is one that is, on its
face, policy-neutral and designed to service only the interests
of Congress' lawmaking role vis-a-vis the President rather than
any particular political agenda.
Thank you for your time, and I look forward to your
questions.
[Mr. Thallam's prepared statement follows:]
Prepared Statement of Satya Thallam,\\ Policy Advisor, Arnold &
Porter
---------------------------------------------------------------------------
\\ The views expressed here are my own and not those of
Arnold & Porter Kaye Scholer LLP.
---------------------------------------------------------------------------
Introduction
Chairman Perry, Ranking Member Titus, and members of the committee,
thank you for the opportunity to discuss the issue of national
emergencies and the National Emergencies Act.\1\ In this testimony, I
hope to briefly cover three topics:
---------------------------------------------------------------------------
\1\ National Emergencies Act, 50 U.S.C. Sec. 1601-1651 (1976).
---------------------------------------------------------------------------
The basic structure of the National Emergencies Act.
The origins of the law.
Some thoughts on renewed interest in the subject.
Let me discuss each of these briefly in greater detail.
The Conceptual Structure
This dangerous state of affairs is a direct result of
Congress's failure to establish effective means for the
handling of emergencies . . . . Congress, through its own
actions, has transferred awesome magnitudes of power to the
Executive without ever examining the cumulative effect of that
delegation of responsibility.\2\
---------------------------------------------------------------------------
\2\ Patrick A. Thronson, Note: Toward Comprehensive Reform of
America's Emergency Law Regime, 46 U. Mich. J. L. Reform 745 (Winter
2013) (quoting S. Rep. No. 94-922, at 1 (1974)).
Though legislative authority is solely granted to Congress in
Article I of the Constitution, from the very founding of the Republic
itself, the consideration and use of emergency authorities which occupy
a somewhat liminal policymaking space were taken as granted.\3\
Although early exercises of emergency authority did not begin to take a
more formal shape until the 20th century, the existence of
circumstances that ``have not attained enough of stability or
recurrency to admit of their being dealt with according to rule'' \4\
was generally accepted as meriting exercise of extraordinary
authorities when such circumstances presented a significant threat to
the republic--when ``the existence of conditions [present] danger to
life or well-being beyond that which is accepted as normal.'' \5\
---------------------------------------------------------------------------
\3\ See J. Reuben Clark Jr., comp., Emergency Legislation Passed
Prior to December 1917 Dealing with the Control and Taking of Private
Property for the Public Use, Benefit, or Welfare, Presidential
Proclamations and Executive Orders Thereunder, to and Including January
31, 1918, to Which Is Added a Reprint of Analogous Legislation Since
1775 (Washington: Government Publishing Office [GPO], 1918), pp. 201-
228.
\4\ Edward S. Corwin, The President: Office and Powers, 1787-1957,
p. 3.
\5\ U.S. Congress, Senate Special Committee on the Termination of
the National Emergency, National Emergency, hearings, 93rd Cong., 1st
sess., April 11-12, 1973 (Washington: GPO, 1973), p. 279.
---------------------------------------------------------------------------
The fundamental problem is that emergencies are, by their nature,
impossible to define ex ante with any precision or temporal certainty.
Therefore Congress is faced with the impossible task of delineating
suitable responses to exigent and often unforeseeable circumstances to
which it can delegate effective but limited powers to the Executive
Branch. Emergencies can broadly be thought of as a ``I know it when I
see it,'' but not before, category of events.
Nonetheless, over time, Congress has attempted to anticipate
categories of emergencies and grant specific authorities therein. For
example, during a time of war, a pandemic or outbreak, or a natural
disaster, the President has been granted certain powers which they
otherwise are not entitled in order to respond specifically to that
type of emergency. The valid exercise of these powers are laid out in
specific statutes, often in response to a recent emergency. However
Congress has only infrequently at best considered these statutes
holistically--a particular committee or member of Congress may pursue
passage of a statute in the narrow area in which they have jurisdiction
or particular interest.
The National Emergencies Act (NEA) was an attempt to overlay a
workable structure which both acknowledged the often sui generis and
undefinable nature of emergencies to which Congress at various points
has seen fit to empower the President to respond, but cabin their use
through a mechanism of control. Conceptually, think of the various
individual ``statutory powers that may become available to the
president'' \6\ in a national emergency (nearly 150 of them) \7\ as a
set of tools contained in a vault. Prior to the National Emergencies
Act, the vault door remained unlocked and so the President could access
it at will. After the Act, the door was locked, and though the
President had access to the key, Congress had a mechanism to easily
take the key away and the door was subject to a timer. The NEA is not
per se the grant of authority, but the key which unlocks those
authorities. The NEA was an attempt to regulate use of the key, but
largely did not address which authorities in the emergency vault were
appropriate or not.
---------------------------------------------------------------------------
\6\ See Brennan Ctr. For Justice, A Guide to Emergency Powers and
Their Use (Feb. 13, 2019), https://www.brennancenter.org/sites/default/
files/legislation/AGuideToEmergencyPowersAnd
TheirUse_2.13.19.pdf.
\7\ Ibid.
---------------------------------------------------------------------------
This approach was a reasonable compromise of the inherently
unpredictable nature of emergencies, the frequent need for the
President to act quickly, but ensure Congress as the sole lawmaking
branch of government exercised appropriate control, and also ensured
emergencies do not become ``never ending'' by default. Unfortunately a
Supreme Court case several years after passage rendered the NEA's
disapproval mechanism unconstitutional, which required Congress
undertake the same procedure as an entirely new statute in order to
terminate an emergency, effectively making the NEA's mechanism moot.\8\
---------------------------------------------------------------------------
\8\ Immigration and Naturalization Service v. Chadha, 462 U.S. 919
(1983).
---------------------------------------------------------------------------
The NEA's Origin
It is worth considering how the National Emergency Act came to be.
The special bipartisan committee which ended up proposing the idea
started with much more modest intentions. The 1972 committee, which
``was the only congressional committee of its time to have membership
comprised of an equal number of Republicans and Democrats,'' \9\ was
intended only to ``assess the consequences of terminating'' a specific
emergency, that which was ``initially declared by President Truman on
the eve of the Korean War in 1950.'' \10\
---------------------------------------------------------------------------
\9\ Patrick A. Thronson, Note: Toward Comprehensive Reform of
America's Emergency Law Regime, 46 U. Mich. J.L. Reform 737, 744
(Winter 2013).
\10\ Ibid.
During the course of its work, the Special Committee realized
the breadth of the emergency authorities that Congress had
ceded to the President: ``The President has had extraordinary
powers--powers to seize property and commodities, seize control
of transportation and communications, organize and control the
means of production, assign military forces abroad, and
restrict travel.'' \11\
---------------------------------------------------------------------------
\11\ S. Rep. 116-159, at 2 (2019) (quoting Patrick A. Thronson,
Note: Toward Comprehensive Reform of America's Emergency Law Regime, 46
U. Mich. J.L. Reform 737, 744 (Winter 2013) and S. Rep. No. 94-922, at
3 (1974)).
Having identified 470 duly enacted statutory provisions granting
emergency authorities, it directly pointed the finger back at itself as
having created this ``dangerous state of affairs,'' failing to have
``establish[ed] effective means for the handling of emergencies'' and
having ``transferred awesome magnitudes of power to the Executive
without ever examining the cumulative effect of that delegation of
responsibility.'' \12\
---------------------------------------------------------------------------
\12\ S. Rep. No. 94-922, at 1 (1974).
---------------------------------------------------------------------------
Among other things, the NEA established ``finely wrought procedures
designed to ensure prompt and effective congressional oversight of
emergency declarations.'' \13\ But as discussed earlier, a court case
made those procedures in the end subject to Presidential veto which
made terminating emergency declarations subject only to the Executive's
wishes in the absence of veto-proof majorities in both houses.
---------------------------------------------------------------------------
\13\ Supra, note 11, at 3.
---------------------------------------------------------------------------
The NEA was a reasonable and at the time effective meta-structure
for the dealing with national emergencies, cabining Presidential
exercise of powers, and reclaiming Congress's rightful policymaking
prerogative, that was unfortunately undone through judicial review.
With that in mind, I would recommend Congress work to improve (and
Constitutionally conform) the basic structure, rather than begin anew
with an entirely de novo mechanism.
Recent Interest
While I consider it beyond my role in this hearing to endorse or
disapprove of any specific NEA reform proposals which may be under
consideration by the committee, renewed interest in the subject merits
some discussion. For obvious reasons, Congress has taken an interest in
the workings of national emergency declarations, emergency authorities,
and Congress's own prerogatives thereon.
Though the public controversies around recent emergencies tend to
focus on the perceived (il)legitimacy around the declaration itself, as
alluded to earlier, the declaration is only the means to exercise the
policies which affect individuals. The declaration in a way is a
statement about the state of the world, and what follows are the
actions which are either appropriate or not. That said, because of the
unforeseeable nature of emergencies, Congress should focus in the first
instance on the declaration of an emergency and how to (1) create a
presumption of limitation, premised on the idea that emergencies are by
definition time-limited in nature, and (2) reassert Congress's active
role in determining whether an emergency merits the exercise of
extraordinary powers to which it is claiming necessity.
One recent proposal seeks to address these issues by establishing a
default time window after which an emergency declaration is presumed
terminated. Further, it reverses the extant NEA resolution mechanism by
turning it into an approval resolution, whereby Congress may choose to
extend any emergency through streamlined floor procedures and simple
majorities. In this way Congress can cabin emergency declarations in a
feasible way while permitting immediate but not unlimited executive
action.
One might characterize such an approach as only limiting the
President, but it is more appropriately thought of as also providing
political legitimacy and granting an Article I imprimatur to an
emergency response. Emergencies should be fairly self-evident and as
such be able to garner consent from the people's representatives. Never
ending emergencies threaten policy certainty and over time, and
policies undertaken pursuant to an emergency can become embedded into
the policy firmament, in the end making it more difficult to end it.
This should not be how policy decisions are made.
In my own experience working on NEA reforms as a congressional
committee staffer, I witnessed bipartisan agreement on these points.
Though Democrats and Republicans were ultimately motivated by different
specific emergencies they found to be illegitimate, they found common
cause in upholding Congress's constitutional responsibility, no matter
who occupies the White House. A policy-neutral mechanism, like that
established in the NEA, though in need of updating, is the right remedy
to decades of disuse of Congress's Article I policy muscles.
I commend the committee for its interest in this important subject.
I thank you and I look forward to your questions.
Mr. Perry. The Chair thanks the gentleman. Next, Ms.
Goitein, you are recognized for 5 minutes for your testimony.
TESTIMONY OF ELIZABETH GOITEIN, SENIOR DIRECTOR, LIBERTY AND
NATIONAL SECURITY PROGRAM, BRENNAN CENTER FOR JUSTICE AT NEW
YORK UNIVERSITY SCHOOL OF LAW
Ms. Goitein. Chairman Perry, Ranking Member Titus, and
members of the subcommittee, thank you for this opportunity to
testify.
Mr. Dayton explained how Congress lost its power under the
National Emergencies Act, and Mr. Thallam previewed how
Congress might be able to regain that power. I would like to
elaborate on how emergency powers are supposed to work, why
this system is not working, and what the stakes are if Congress
does not act.
Emergencies, by definition, are sudden, unexpected events
that require immediate action. Because they are unforeseeable,
Congress cannot address them ahead of time through specific
legislation tailored to the circumstances, nor can Congress act
with the necessary speed and flexibility to address them once
they actually occur.
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 for Congress to respond through the normal
legislative process.
For the past century, we have had a system in which the
President can declare a national emergency, and that
declaration triggers special powers contained in a whole range
of statutes, all of which say something like, in a national
emergency, the President can do ``X.''
For several decades, though, there was no overarching
statute governing the system; there was very little
transparency about how emergency powers were used; 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 to terminate emergency declarations using a
legislative veto, a law that can pass without the President's
signature; and third, it required Congress, every 6 months
while an emergency was in effect, to meet and consider a vote
on termination.
As Mr. Thallam and Mr. Dayton made very clear, the NEA is
not working as Congress intended. Expiration of emergency
declarations after a year, which was supposed to be the norm,
is the rare exception. There are 41 emergency declarations in
effect today, most of which have been in place for over a
decade.
In 1983, the Supreme Court held that legislative vetoes are
unconstitutional, so now, Congress usually needs to have a
supermajority in order to terminate an emergency declaration.
And for more than 40 years, Congress literally ignored the
requirement to periodically review existing emergencies. This
state of affairs is dangerous.
In 2018, the Brennan Center cataloged 123 statutory powers
that become available to a President who declares a national
emergency. Today, that number has risen to 135. Some of these
powers carry enormous potential for abuse.
To give you just one example, there is a law that allows
the President to take over or shut down wire or communications
facilities. This provision was last invoked during World War II
when wire communications meant telephone calls and telegrams,
and most American households didn't even have a telephone.
Today, it could arguably be used to assert control over U.S.-
based internet traffic.
It is not hard to see how laws like that could be abused to
consolidate power or undermine democracy. But there is a softer
form of abuse, and that is the use of emergency powers to get
around Congress when Congress doesn't support the President's
policy goals.
In recent years, we have seen that type of misuse by
Presidents of both parties. While that may not sound as
alarming as shutting down communications facilities, it
undermines the constitutional separation of powers, and in the
long run, the separation of powers is perhaps the most critical
protection for democracy that we have.
Fortunately, there is a legislative solution that has broad
support on both sides of the aisle. The central aspect, the
central piece of this solution is a requirement that
Presidential emergency declarations would terminate after 30
days unless approved by Congress using expedited procedures
that would allow any Member to force a vote and would prohibit
filibustering in the Senate. If approved, a declaration could
last up to a year, but if the President wanted to renew it, he
would, again, have to get congressional approval.
This commonsense solution gives the President flexibility
when it is most needed in the immediate aftermath of a crisis,
but allows Congress to step in and act as a backstop against
abuse or overreach.
Thank you very much, and I look forward to your questions.
[Ms. Goitein's prepared statement follows:]
Prepared Statement of Elizabeth Goitein, Senior Director, Liberty and
National Security Program, Brennan Center for Justice at New York
University School of Law
Introduction
Chairman Perry, Ranking Member Titus, and members of the
subcommittee, thank you for this opportunity to testify on behalf of
the Brennan Center for Justice at New York University School of Law.\1\
The Brennan Center is a nonpartisan law and policy institute that seeks
to improve our systems of democracy and justice. I co-direct the
Center's Liberty and National Security Program, which works to advance
effective national security policies that respect constitutional values
and the rule of law.
---------------------------------------------------------------------------
\1\ This testimony is submitted on behalf of a Center affiliated
with New York University School of Law but does not purport to
represent the school's institutional views on this topic. More
information about the Brennan Center's work can be found at http://
www.brennancenter.org.
---------------------------------------------------------------------------
In December 2018, the Brennan Center completed a two-year intensive
research project on the legal framework for national emergencies, which
I oversaw. This work was a natural outgrowth of the program's longtime
focus on executive power in the area of national security.\2\ We began
our study of emergency powers by researching the history of the
National Emergencies Act of 1976 (NEA). We then catalogued all the
statutory powers that become available to the president when a national
emergency is declared, and for each such power, we determined when and
under what circumstances it had been invoked. We published this
compendium online \3\ along with a list of national emergency
declarations issued since the National Emergencies Act went into
effect.\4\
---------------------------------------------------------------------------
\2\ See, e.g., Michael German and Sara Robinson, Wrong Priorities
on Fighting Terrorism, Brennan Center for Justice, October 31, 2018,
https://www.brennancenter.org/our-work/research-reports/wrong-
priorities-fighting-terrorism; Faiza Patel and Meghan Koushik,
Countering Violent Extremism, Brennan Center for Justice, March 16,
2017, https://www.brennancenter.org/our-work/research-reports/
countering-violent-extremism; Elizabeth Goitein, The New Era of Secret
Law, Brennan Center for Justice, October 18, 2016, https://
www.brennancenter.org/our-work/research-reports/new-era-secret-law;
Michael German, Strengthening Intelligence Oversight, Brennan Center
for Justice, January 27, 2015, https://www.brennancenter.org/our-work/
policy-solutions/strengthening-intelligence-oversight; Elizabeth
Goitein and Faiza Patel, What Went Wrong with the FISA Court, Brennan
Center for Justice, March 18, 2015, https://www.brennancenter.org/our-
work/research-reports/what-went-wrong-fisa-court.
\3\ ``A Guide to Emergency Powers and Their Use,'' Brennan Center
for Justice, last updated February 8, 2023, https://
www.brennancenter.org/analysis/emergency-powers.
\4\ ``Declared National Emergencies Under the National Emergencies
Act,'' Brennan Center for Justice, last updated May 11, 2023, https://
www.brennancenter.org/our-work/research-reports/declared-national-
emergencies-under-national-emergencies-act.
---------------------------------------------------------------------------
We followed up with a deep dive into one of the most potent
authorities that becomes available during a declared national
emergency: the International Emergency Economic Powers Act (IEEPA).\5\
After extensive consultation with stakeholders, including a group of
experienced former sanctions officials, we developed a proposal for
legislative reform of IEEPA. We set forth this proposal--along with our
research into IEEPA's history and operation--in our June 2021 report,
Checking the President's Sanctions Powers.\6\
---------------------------------------------------------------------------
\5\ 50 U.S.C. Sec. Sec. 1701 et seq.
\6\ Andrew Boyle, Checking the President's Sanctions Powers,
Brennan Center for Justice, June 10, 2021, https://
www.brennancenter.org/media/7754/download.
---------------------------------------------------------------------------
At the same time, we embarked on a set of research projects to
examine the authorities governing domestic deployment of the military
in emergency situations. This work led to the publication in 2020 of a
report on martial law--i.e., the displacement of civilian government by
military authority--in which we concluded that current law would not
authorize the imposition of martial law by the president.\7\ In 2022,
we followed up with a legislative proposal to reform the Insurrection
Act,\8\ a law that gives the president nearly unchecked discretion to
deploy federal troops to suppress civil unrest or to enforce the law
when it is being obstructed.
---------------------------------------------------------------------------
\7\ Joseph Nunn, Martial Law in the United States: Its Meaning, Its
History, and Why the President Can't Declare It, Brennan Center for
Justice, August 20, 2020, https://www.brennancenter.org/our-work/
research-reports/martial-law-united-states-its-meaning-its-history-and-
why-president-cant.
\8\ Elizabeth Goitein and Joseph Nunn, Statement to the January 6th
Committee on Reforming the Insurrection Act, Brennan Center for
Justice, September 20, 2022, https://www.brennancenter.org/our-work/
research-reports/statement-january-6th-committee-reforming-
insurrection-act.
---------------------------------------------------------------------------
We also expanded our research focus to encompass non-statutory
sources of emergency authority, examining the little-known phenomenon
of ``presidential emergency action documents,'' or PEADs.\9\ The public
record on these documents is scant, and the Brennan Center is working
to supplement it through Freedom of Information Act requests. The
available information, however, gives ample reason for concern about
these shadowy claims to emergency power.\10\
---------------------------------------------------------------------------
\9\ See Elizabeth Goitein and Andrew Boyle, ``Trump Has Emergency
Powers We Aren't Allowed to Know About,'' New York Times, April 10,
2020, https://www.nytimes.com/2020/04/10/opinion/trump-coronavirus-
emergency-powers.html.
\10\ See ``Presidential Emergency Action Documents,'' Brennan
Center for Justice, last updated May 26, 2022, https://
www.brennancenter.org/our-work/research-reports/presidential-emergency-
action-documents.
---------------------------------------------------------------------------
Based on this research and on events of the past few years, I
believe the legal framework that governs presidential emergency powers
is in urgent need of reform.
The powers triggered by a national emergency declaration include
authorities that are highly susceptible to abuse. They could be misused
to undermine our democracy--and they already have been exploited, by
presidents of both parties, to implement long-term policy goals in the
face of congressional opposition or inaction. These powers must be
subject to meaningful checks against abuse and overreach. In its
current form, the NEA makes it far too easy for presidents to declare
national emergencies and keep them in place indefinitely--and far too
difficult for Congress to terminate them. Congress should amend the NEA
to provide that presidential emergency declarations will terminate
after 30 days unless approved by Congress, and to require congressional
approval for any subsequent renewals of the declaration. Lawmakers have
introduced several bills that would implement this basic reform.
Congress should address IEEPA separately, as IEEPA sanctions raise
concerns that are unlikely to be solved by a congressional approval
requirement alone. The Brennan Center has proposed amending IEEPA to
include due process protections for Americans caught up in sanctions
regimes; broaden the law's exception for the provision of humanitarian
aid; and require increased transparency in various aspects of the law's
operation. IEEPA also should include a congressional approval
requirement--one that would allow Congress, if necessary, to vote on
sanctions regimes as a package rather than individually.
In addition, Congress should reform the Insurrection Act in a
manner that preserves the president's ability to deploy federal forces
in crisis situations while establishing safeguards to prevent abusive
deployments. The Brennan Center's proposal would more clearly specify
the circumstances under which troops may be deployed and the actions
authorized during such deployment. It would also establish mechanisms
for both congressional approval and judicial review, ensuring that the
other branches of government are able to serve their constitutional
role as a check on executive power.
Finally, Congress must have visibility into how the executive
branch interprets and proposes to implement its emergency authorities.
Secret executive claims to emergency powers, unchecked by any other
branch of government, are anathema to the Constitution's separation of
powers and carry grave risks for our democracy. Congress accordingly
should require the president to disclose PEADs, and any legal analysis
underpinning them, to the relevant congressional oversight committees.
I. Emergency Powers in the United States: What they Are--and Aren't
Emergency powers have existed in countries around the world for
hundreds of years. They are based on a simple premise: Because
emergencies are, by definition, unforeseeable and unforeseen, existing
laws might not be sufficient to respond to them, and amending the law
to provide greater powers might take too long or do damage to
principles held sacrosanct in ordinary times. Emergency powers thus
give the government--usually, the head of state--a temporary boost in
power until the crisis passes or there is time to change the law
through normal legislative processes.\11\
---------------------------------------------------------------------------
\11\ See generally John Ferejohn and Pasquale Pasquino, ``The Law
of the Exception: A Typology of Emergency Powers,'' International
Journal of Constitutional Law 2 (2004): 210; Jules Lobel, ``Emergency
Power and the Decline of Liberalism,'' Yale Law Journal 98 (1989):
1385.
---------------------------------------------------------------------------
Unlike the modern constitutions of most countries,\12\ the U.S.
Constitution includes no separate regime for emergencies. It does
include a handful of specific crisis-response provisions, but these
powers are given to Congress, not to the president. Most notably,
Congress may suspend the writ of habeas corpus ``when in Cases of
Rebellion or Invasion the public Safety may require it,'' \13\ and
Congress has the power ``to provide for calling forth the Militia to
execute the laws of the Union, suppress Insurrections and repel
Invasions.'' \14\
---------------------------------------------------------------------------
\12\ A review of current constitutions reveals that at least 172
countries' constitutions have provisions for emergency rule. See
Constitute, s.v. ``emergency,'' accessed May 18, 2023, https://
www.constituteproject.org/
constitutions?lang=en&q=emergency&status=in_force&status=
is_draft.
\13\ U.S. Const. art. 1, Sec. 9, cl. 2.
\14\ U.S. Const. art. 1, Sec. 8, cl. 15.
---------------------------------------------------------------------------
Although Article II confers no explicit emergency powers, there are
implied powers accompanying some of its express provisions. Most
notably, the Commander-in-Chief power entails the authority to defend
the United States against sudden attack, even without prior
congressional authorization,\15\ and to manage the conduct of war. The
Supreme Court has also asserted (somewhat controversially) that the
president is the ``sole organ of the federal government in the field of
international relations,'' \16\ although the scope of this exclusive
power in the international-relations field remains unclear.
---------------------------------------------------------------------------
\15\ See Louis Fisher, Presidential War Power, 2nd rev. ed.
(Lawrence: University Press of Kansas, 2004), 8-10.
\16\ United States v. Curtiss-Wright Export Corp., 299 U.S. 304,
319 (1936).
---------------------------------------------------------------------------
Broader claims that the president has inherent constitutional
powers to do whatever he considers necessary in an emergency have been
soundly rejected by the Supreme Court. The government advanced a
version of this theory to justify President Truman's seizure of U.S.
steel mills during the Korean War. The Supreme Court invalidated the
president's action, and Justice Jackson, in his famous concurrence,
observed: ``[T]he Constitution did not contemplate that the title
Commander in Chief of the Army and Navy will constitute him also
Commander in Chief of the country, its industries and its
inhabitants.'' \17\
---------------------------------------------------------------------------
\17\ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 643-44
(1952) (Jackson, J., concurring) (emphasis in original).
---------------------------------------------------------------------------
Accordingly, since the founding of the nation, Congress has been
the primary source of the president's emergency powers. It has
periodically legislated standby authorities that the president may
activate when certain types of emergencies occur.\18\ These are akin to
an advance medical directive; they represent Congress's best guess as
to what authorities a president might need in a crisis that is
unfolding too quickly for Congress to act in the moment. As such, they
can be quite broad in the actions that they allow and in the discretion
that they grant.
---------------------------------------------------------------------------
\18\ See Harold C. Relyea, Congressional Research Service, National
Emergency Powers, report no. 98-505 (2007), 5, https://fas.org/sgp/crs/
natsec/98-505.pdf.
---------------------------------------------------------------------------
Several laws give the president or other executive branch officials
the power to issue emergency declarations in specified situations,
which in turn unlock resources and authorities as provided in the law.
Notable examples include the Public Health Service Act \19\ and the
Stafford Act.\20\ In addition to these statutes, each of which
constitutes a self-contained grant of emergency authority, the National
Emergencies Act (NEA) allows the president to declare a national
emergency, which then unlocks more than 130 statutory authorities
scattered throughout the U.S. Code. The NEA is discussed in detail in
Part II of this testimony.
---------------------------------------------------------------------------
\19\ Pub. L. 78-410 (1944) (codified at 42 U.S.C. ch. 6A Sec. Sec.
201 et seq.).
\20\ Pub. L. 100-707 (1988) (codified at 42 U.S.C. ch. 68
Sec. Sec. 5121 et seq.).
---------------------------------------------------------------------------
Finally, many laws that are available without an emergency
declaration are properly viewed as emergency powers, because they
confer extraordinary authorities that are clearly intended for use in
extraordinary situations. A prime example of this type of ``pseudo-
emergency power'' is the Insurrection Act,\21\ one portion of which
allows the president to deploy military forces domestically to suppress
insurrections, domestic violence, and any ``unlawful combination'' or
``conspiracy'' that ``opposes or obstructs'' the execution of the
law.\22\ Similarly, multiple statutes allow the president to take
certain actions--or set aside otherwise applicable limits on
presidential action--when necessary for ``national security.'' \23\
---------------------------------------------------------------------------
\21\ 10 U.S.C. Sec. 251-55 (2018). For information about the
Insurrection Act and its invocations throughout U.S. history, see
Joseph Nunn, ``The Insurrection Act Explained,'' Brennan Center for
Justice, April 21, 2022, https://www.brennancenter.org/our-work/
research-reports/insurrection-act-explained; Joseph Nunn and Elizabeth
Goitein, ``Guide to Invocations of the Insurrection Act,'' Brennan
Center for Justice, April 25, 2022, https://www.brennancenter.org/our-
work/research-reports/guide-invocations-insurrection-act.
\22\ 10 U.S.C. Sec. 253 (2018).
\23\ Section 232 of the Trade Expansion Act of 1962, for instance,
allows the President to impose restrictions on certain imports when the
Department of Commerce determines that the product ``is being imported
into the United States in such quantities or under such circumstances
as to threaten to impair the national security.'' 19 U.S.C. Sec. 1862.
---------------------------------------------------------------------------
Critically, none of these powers allows the president to make law
in his own right--i.e., to create the alternative set of rules that
will govern his actions. Under the statutory emergency powers regime,
the president is strictly limited to the powers that Congress has
granted to him in advance. The will of Congress thus remains the
touchstone during emergencies as in other times. This scheme preserves
the constitutional separation of powers, in contrast to some other
countries whose constitutions allow the head of state to dissolve the
legislature or take over its functions during times of emergency.\24\
---------------------------------------------------------------------------
\24\ See, e.g., Constitution of the Republic of Ecuador, 2015, ch.
3, Sec. 1, art. 148.
---------------------------------------------------------------------------
II. The Origin and Purpose of the National Emergencies Act
Although statutory emergency powers have existed since the
country's founding, the process by which presidents avail themselves of
such powers has evolved over time. The current system for national
emergencies--in which the president declares a national emergency, and
the declaration unlocks statutory powers that would otherwise lie
dormant--dates back to President Woodrow Wilson.\25\ It developed
organically, and for several decades there was no single law that
governed the process. Presidents did not have to identify what powers
they would invoke or keep Congress informed of their actions, and
states of emergency could last indefinitely.
---------------------------------------------------------------------------
\25\ See Relyea, National Emergency Powers, 7.
---------------------------------------------------------------------------
In the 1970s, several scandals involving executive branch
overreach--including Watergate, the bombing of Cambodia, and domestic
spying by the CIA--prompted Congress to take a hard look at executive
power, and to enact several laws aimed at reasserting Congress's role
as a coequal branch of government and a check on executive
authority.\26\ It was in this context that a special Senate committee
was formed to examine presidential use of emergency powers.
---------------------------------------------------------------------------
\26\ See generally Thomas E. Cronin, ``A Resurgent Congress and the
Imperial Presidency,'' Political Science Quarterly 95, no. 2 (1980):
209-37.
---------------------------------------------------------------------------
The immediate impetus for the committee's formation was Republican
Senator Charles Mathias's discovery that an emergency declaration
issued in 1950, at the start of the Korean War, was still in place and
was being used to prosecute the war in Vietnam. On closer examination,
the committee learned that four clearly outdated states of emergency
were still in effect, giving the president access to literally hundreds
of statutory emergency powers. These included powers ``to seize
property and commodities, organize and control the means of production,
call to active duty 2.5 million reservists, assign military forces
abroad, seize and control all means of transportation and
communication, restrict travel, and institute martial law, and, in many
other ways, manage every aspect of the lives of all American
citizens.'' \27\
---------------------------------------------------------------------------
\27\ S. Comm. On Government Operations and the Spec. Comm. On
National Emergencies and Delegated Emergency Powers, The National
Emergencies Act (Pub. L. 94-412) Source Book: Legislative History,
Text, and Other Documents 20 (1976) (hereinafter ``Spec. Comm. On
National Emergencies Source Book'').
---------------------------------------------------------------------------
The committee's work culminated in the introduction and passage of
the National Emergencies Act of 1976.\28\ The clear purpose of the law,
evident in every facet of the legislative history, was to place limits
on presidential use of emergency powers. As summarized by the committee
in urging passage of the Act:
---------------------------------------------------------------------------
\28\ National Emergencies Act, Pub. L. No. 94-412, 90 Stat. 1255
(1976).
While much work remains, none of it is more important than
passage of the National Emergencies Act. Right now, hundreds of
emergency statutes confer enough authority on the President to
rule the country without reference to normal constitutional
process. Revelations of how power has been abused by high
government officials must give rise to concern about the
potential exercise, unchecked by the Congress or the American
people, of this extraordinary power. The National Emergencies
Act would end this threat and insure that the powers now in the
hands of the Executive will be utilized only in time of genuine
emergency and then only under safeguards providing for
Congressional review.\29\
---------------------------------------------------------------------------
\29\ Spec. Comm. On National Emergencies Source Book, 50.
The law employed several mechanisms to this end. It required the
president to publish declarations of national emergency in the Federal
Register; \30\ to specify the powers he intended to invoke; \31\ and to
report to Congress every six months on expenditures related to
emergency powers.\32\ It provided that states of emergency would
terminate after a year unless renewed by the president.\33\ Most
important, it allowed Congress to terminate states of emergency at any
time through a concurrent resolution (a so-called ``legislative veto''
that would take effect without the president's signature),\34\ and it
required Congress to meet every six months while an emergency
declaration was in effect to ``consider a vote'' on whether to end the
emergency.\35\
---------------------------------------------------------------------------
\30\ National Emergencies Act, Pub. L. No. 94-412, Sec. 201, 90
Stat. 1255 (codified at 50 U.S.C. Sec. 1621).
\31\ Id. Sec. 301 (codified at 50 U.S.C. Sec. 1631).
\32\ Id. Sec. 401(c) (codified at 50 U.S.C. Sec. 1641(c)).
\33\ Id. Sec. 202(d) (codified at 50 U.S.C. Sec. 1622(d)).
\34\ Id. Sec. 202 (codified as amended at 50 U.S.C. Sec. 1622).
\35\ Id. Sec. 202(b) (codified at 50 U.S.C. Sec. 1622(b)).
---------------------------------------------------------------------------
As enacted, the law did not include a definition of ``national
emergency.'' Critically, however, this omission was not intended as a
grant of unlimited discretion. Under an earlier draft of the
legislation, the president was authorized to declare a national
emergency ``[i]n the event the President finds that a proclamation of a
national emergency is essential to the preservation, protection and
defense of the Constitution or to the common defense, safety, or well-
being of the territory or people of the United States.'' \36\ One
committee report noted that ``[t]he definition of an emergency has been
deliberately cast in broad terms that makes it clear that a
proclamation of a state of national emergency requires a grave national
crisis.'' \37\
---------------------------------------------------------------------------
\36\ S. 977, 94th Cong. Sec. 201(a) (1975).
\37\ Spec. Comm. On National Emergencies Source Book, 96.
---------------------------------------------------------------------------
The Senate Committee on Government Operations ultimately removed
this language, not because it was too limiting, but because the
committee believed it to be too broad. As stated in the committee's
report:
[F]ollowing consultations with several constitutional law
experts, the committee concluded that section 201(a) is overly
broad, and might be construed to delegate additional authority
to the President with respect to declarations of national
emergency. In the judgment of the committee, the language of
this provision was unclear and ambiguous and might have been
construed to confer upon the President statutory authority to
declare national emergencies, other than that which he now has
through various statutory delegations.
The Committee amendment clarifies and narrows this language.
The Committee decided that the definition of when a President
is authorized to declare a national emergency should be left to
the various statutes which give him extraordinary powers. The
National Emergencies Act is not intended to enlarge or add to
Executive power. Rather the statute is an effort by the
Congress to establish clear procedures and safeguards for the
exercise by the President of emergency powers conferred upon
him by other statutes.\38\
---------------------------------------------------------------------------
\38\ S. Comm. On Gov. Operations, Report to Accompany H.R. 3884, S.
Rep. No. 94-1168, 3 (1976) (reprinted in Spec. Comm. On National
Emergencies Source Book, 292).
The committee's solution ultimately proved ineffective, as the
majority of the statutes in place today that confer power on the
president during ``national emergencies'' do not include definitions of
the term or any criteria that must be met beyond the issuance of the
declaration. It is nonetheless significant that Congress believed that
even a definition limiting national emergencies to grave national
crises would be ``overly broad.'' The notion that Congress intended the
National Emergencies Act as an affirmative delegation of unlimited
discretion to the president is contradicted by this and every other
aspect of the legislative history.
III. National Emergencies from 1979 to the Present
The National Emergencies Act has not served as the strong check on
executive action that Congress intended. The requirements that the
president publish a declaration of national emergency in the Federal
Register, identify publicly the powers he intends to use, and report to
Congress on emergency-related expenditures have provided a modicum of
transparency. It appears, however, that the executive branch stopped
submitting the required expenditure reports for emergency declarations
(other than those that rely solely on IEEPA) twenty years ago.\39\ And
other key provisions of the law have proven toothless.
---------------------------------------------------------------------------
\39\ See Gregory Korte, ``A permanent emergency: Trump becomes
third president to renew extraordinary post-9/11 powers,'' USA Today,
September 14, 2017, https://www.usatoday.com/story/news/politics/2017/
09/14/permanent-emergency-trump-becomes-third-president-renew-
extraordinary-post-9-11-powers/661966001/.
---------------------------------------------------------------------------
As noted, the decision not to define ``national emergency,''
although intended to ensure the Act did not result in an expansion
presidential authority, in practice meant there were no clearly
articulated limits on the exercise of the president's discretion. In
addition, renewal of emergencies after one year, intended to be the
exception, has become the default. Most of the emergencies declared
since the National Emergencies Act was passed are still in effect. The
average length of emergencies has been close to a decade, with 29
emergencies lasting even longer. The longest-running state of emergency
was issued by President Jimmy Carter in 1979 in response to the Iranian
hostage crisis and remains in place today.\40\
---------------------------------------------------------------------------
\40\ See ``Declared National Emergencies Under the National
Emergencies Act,'' Brennan Center for Justice, last updated May 11,
2023, https://www.brennancenter.org/our-work/research-reports/declared-
national-emergencies-under-national-emergencies-act.
---------------------------------------------------------------------------
Perhaps most significantly, Congress has not exercised its intended
role as a check on presidential power. In 1983, the Supreme Court ruled
that concurrent resolutions are unconstitutional.\41\ Congress's
solution was to substitute a joint resolution as the mechanism for
terminating emergencies.\42\ Like any other legislation, a joint
resolution must be signed into law by the president. If the president
vetoes the resolution, Congress can override the veto only with a two-
thirds vote by both houses. This change greatly diluted the role of
Congress as envisioned in the original Act.
---------------------------------------------------------------------------
\41\ See INS v. Chadha, 462 U.S. 919, 954-55 (1983).
\42\ See 50 U.S.C. Sec. 1622(a)(1).
---------------------------------------------------------------------------
Moreover, until recently, Congress demonstrated little interest in
exercising the powers it gave itself. The Act requires Congress to meet
every six months while an emergency is in place to consider a vote on
whether to end the emergency. States of emergency have been in place
throughout the 45 years the law has been in effect, which means
Congress should have met 90 times to review existing states of
emergency. Before 2019, however, only one resolution to end a state of
emergency had ever been introduced, and the emergency declaration at
issue was revoked before Congress could vote on it.\43\
---------------------------------------------------------------------------
\43\ See Tamara Keith, ``If Trump Declares an Emergency to Build
the Wall, Congress Can Block Him,'' NPR, February 11, 2019, https://
www.npr.org/2019/02/11/693128901/if-trump-declares-an-emergency-to-
build-the-wall-congress-can-block-him.
---------------------------------------------------------------------------
After President Trump declared a national emergency in February
2019 to secure funding for constructing a wall along the southern
border, Congress twice voted to terminate the declaration.\44\
President Trump vetoed the resolution both times,\45\ however, and
Congress was unable to muster the two-thirds majority necessary to
override the veto.\46\ In March of this year, Congress voted to
terminate the national emergency declaration regarding the COVID-19
pandemic.\47\ President Biden, who had already pledged to end the
declaration in May, signed the bill into law; \48\ had he issued a
veto, it is unlikely the House would have voted to override it.\49\
---------------------------------------------------------------------------
\44\ H.J. Res. 46, 116th Cong. (Mar. 2019); S.J. Res. 54, 116th
Cong. (Sep. 2019).
\45\ Donald Trump, ``Veto Message to the House of Representatives
for H.J. Res. 46,'' March 15, 2019, https://
trumpwhitehouse.archives.gov/briefings-statements/veto-message-house-
representatives-h-j-res-46/; Donald Trump, ``S.J. Res. 54 Veto
Message,'' October 15, 2019, https://trumpwhitehouse.archives.gov/
presidential-actions/s-j-res-54-veto-message/.
\46\ H.J. Res. 46, 116th Cong. (override failed in House, Mar. 26,
2019); S.J. Res. 54, 116th Cong. (override failed in Senate, Oct. 17,
2019).
\47\ H.J. Res. 7, 118th Cong. (2023).
\48\ White House, ``Bill Signed: H.J. Res. 7,'' April 10, 2023,
https://www.whitehouse.gov/briefing-room/legislation/2023/04/10/bill-
signed-h-j-res-7/.
\49\ The vote in the House was 220-210, which falls well short of
the two-thirds majority necessary to override a veto. See Ben Leonard,
``House votes to end Covid public health emergency,'' Politico, January
31, 2023, https://www.politico.com/news/2023/01/31/house-end-covid-
public-health-emergency-00080507.
---------------------------------------------------------------------------
National emergencies are thus easy to declare and hard to stop--and
they grant access to a rich well of powers, most of which become
available regardless of whether they are relevant to the emergency at
hand. Given this state of affairs, one might expect presidents to
declare emergencies at every turn and to exploit all of the powers
available to them. Yet this has not been the case. To the contrary,
presidents have generally exercised considerable self-restraint in
their use of statutory emergency powers, and there have been few clear
misuses of the authority to declare national emergencies.
It might seem odd to describe presidential use of emergency powers
as restrained, given that 76 states of national emergency have been
declared in a 45-year period, 41 of which are in effect today. Sixty-
nine of these declarations, however, were issued for the sole or
primary purpose of imposing economic sanctions on foreign actors under
the International Emergency Economic Powers Act (IEEPA) and related
sanctions laws.\50\ These declarations must be considered separately.
---------------------------------------------------------------------------
\50\ The numbers in this paragraph are derived from review of the
emergency proclamations compiled by the Brennan Center and listed at
``Declared National Emergencies Under the National Emergencies Act,''
Brennan Center for Justice, last updated May 11, 2023, https://
www.brennancenter.org/our-work/research-reports/declared-national-
emergencies-under-national-emergencies-act.
---------------------------------------------------------------------------
IEEPA is, in many ways, sui generis. Congress enacted it in 1977 to
limit the powers conferred by the 1917 Trading With the Enemy Act
(TWEA). It was Congress's sense that the TWEA, which gave presidents
broad authority to ``investigate, regulate . . . prevent or prohibit .
. . transactions'' in times of war or declared emergency,\51\ had been
improperly used to regulate domestic economic activity during
peacetime. IEEPA thus limited the use of TWEA to wartime, and created a
new framework for peacetime emergencies.\52\ Under that framework,
presidents could declare a national emergency based on an ``unusual and
extraordinary threat'' to the U.S. national security, foreign policy,
or economy ``which has its source in whole or substantial part outside
the United States.'' \53\ The president could then authorize a range of
economic actions to address the foreign threat.
---------------------------------------------------------------------------
\51\ Trading with the Enemy Act of 1917, ch. 106 Sec. 5(b)(1), 40
Stat. 415 (1917) (codified as amended at 50 U.S.C. Sec. 4305(b)(1)).
\52\ See Laura K. Donohue, ``Constitutional and Legal Challenges to
the Anti-Terrorist Financing Regime,'' Wake Forest Law Review 43
(2008): 643, 647-48.
\53\ International Emergency Economic Powers Act, Pub. L. 95-223,
title II, Sec. 202, 91 Stat. 1626 (1977) (codified at 50 U.S.C.
1701(b)).
---------------------------------------------------------------------------
Despite being tied to the mechanism of national emergency
declarations, and despite the requirement of an ``unusual and
extraordinary threat,'' IEEPA has been used almost from the outset as a
standard tool of foreign policy. Presidents issue declarations under
IEEPA in situations where imposing sanctions on foreign actors would
advance U.S. interests, regardless of whether the threat to those
interests is truly ``extraordinary.'' \54\ IEEPA declarations create
sanctions regimes that often become--and are intended to become--semi-
permanent in nature. IEEPA thus underlies current U.S. economic
policies toward governments or factions in Iran, Sudan, the Balkans,
Zimbabwe, Iraq, Syria, Belarus, the Democratic Republic of the Congo,
the Central African Republic, Burundi, Lebanon, North Korea, Venezuela,
Somalia, Libya, Yemen, and Ukraine.\55\
---------------------------------------------------------------------------
\54\ See Harold Hongju Koh, The National Security Constitution:
Sharing Power After the Iran-Contra Affair (New Haven: Yale University
Press, 1990), 47.
\55\ See ``Declared National Emergencies Under the National
Emergencies Act,'' Brennan Center for Justice, last updated May 11,
2023, https://www.brennancenter.org/our-work/research-reports/declared-
national-emergencies-under-national-emergencies-act.
---------------------------------------------------------------------------
This routinization of IEEPA use is problematic in many respects.
Among other things, it cheapens the currency of national emergencies.
When President Obama declared a national emergency to impose sanctions
on Venezuela in 2015, finding that ``the situation in Venezuela . . .
constitutes an unusual and extraordinary threat to the national
security and foreign policy of the United States,'' \56\ Venezuelan
president Nicolas Maduro's strong reaction prompted unusual public
scrutiny of the declaration. The White House hastened to reassure the
public that there was, in fact, no threat to U.S. national security,
despite the president's words to the contrary. ``[T]he United States
does not believe that Venezuela poses some threat to our national
security,'' said Deputy National Security Adviser Ben Rhodes. ``We,
frankly, just have a framework for how we formalize these executive
orders.'' \57\ State Department spokesperson Jen Psaki echoed his
remarks: ``This is how we describe the process of naming sanctions, and
there are 20 to 30 other sanctions programs we have.'' \58\
---------------------------------------------------------------------------
\56\ Exec. Order No. 13692, 80 Fed. Reg. 127467 (Mar. 8, 2015).
\57\ Gregory Korte, ``White House: States of emergency are just
formalities,'' USA Today, April 9, 2015, https://www.usatoday.com/
story/news/politics/2015/04/09/pro-forma-states-of-national-emergency/
25479553/.
\58\ Korte, ``White House: States of emergency are just
formalities.''
---------------------------------------------------------------------------
Nonetheless, Congress has for decades acquiesced in, and arguably
ratified, the use of IEEPA as a substitute for ordinary sanctions
legislation. Indeed, there is some evidence that Congress, in passing
IEEPA, expected that it would be used to fill gaps in legislative
regimes. Presidents had previously invoked a provision of the TWEA to
impose controls over certain types of exports when export-control
legislation--the Export Administration Act--had lapsed. Congress
imported the relevant language from the TWEA into IEEPA, and the
legislative history shows that Congress anticipated it could be used in
the same way if the Export Administration Act were to lapse again in
the future.\59\ (That is, in fact, exactly what happened in 1983.\60\)
---------------------------------------------------------------------------
\59\ See Joel B. Harris and Jeffrey P. Bialos, ``The Strange New
World of United States Export Controls Under the International
Emergency Powers Act,'' Vanderbilt Journal of Transnational Law 18
(1985): 78-80, 78 n. 16.
\60\ Exec. Order No. 12444, 48 Fed. Reg. 48215 (Oct. 14, 1983).
---------------------------------------------------------------------------
If IEEPA declarations are set aside, the picture looks very
different. National emergency declarations not relying on IEEPA have
been few and far between. A complete list of such declarations
includes:
Executive Order 12722 (1990)--issued in response to the
Iraqi invasion of Kuwait. Although the emergency initially was declared
for the purpose of imposing sanctions under IEEPA, President George
H.W. Bush subsequently relied on it to bolster military strength and to
engage in military construction during the Gulf War.
Proclamation 6491 (1992) \61\--issued in response to
Hurricanes Andrew and Iniki. The declaration was used to suspend
minimum wage requirements with respect to reconstruction efforts in
areas devastated by the hurricanes.
---------------------------------------------------------------------------
\61\ Although the proclamation stated that the hurricanes
constituted a ``national emergency'' and invoked emergency powers, it
did not formally declare an emergency under the National Emergencies
Act. Accordingly, this proclamation is not included in the Brennan
Center's list of national emergency declarations. It is referenced in
this testimony to present a complete picture of how emergency powers
have been used.
---------------------------------------------------------------------------
Proclamation 6867 (1996)--issued in response to Cuban
attacks on U.S. civilian aircraft. The declaration was used to impose a
naval blockade on Cuba.
Proclamation 7463 (2001)--issued in response to the
attacks of 9/11. The declaration was used primarily to make changes in
the size and composition of the military forces, including calling
reservists to active duty and implementing stop-loss policies.
Proclamation 7924 (2006)--issued in response to Hurricane
Katrina. The declaration was used to suspend minimum wage requirements
with respect to reconstruction efforts in areas devastated by the
hurricane.
Proclamation 8443 (2009)--issued in response to the swine
flu epidemic. The declaration was used to waive certain legal
requirements in order to facilitate the provision of public health
services.
Proclamation 9844 (2019)--issued in response to unlawful
immigration at the southern border of the United States. The
declaration was used to reallocate funding from military construction
projects to enable construction of a border wall.
Proclamation 9994 (2020)--issued in response to the
COVID-19 pandemic. The declaration was used primarily to increase
flexibility in the provision of health care services, fund National
Guard deployments relating to the Covid response, and pause payments
on--and ultimately forgive--student loans to mitigate the economic
hardship resulting from the pandemic.
Proclamation 10371 (2022)--issued in response to Russia's
invasion of Ukraine. The declaration is being used to block Russian-
affiliated vessels from entering United States ports of entry.
With the exception of Proclamation 9844 (the border wall
declaration), which is discussed further below, all of these
declarations were triggered by sudden, unexpected events. Most of these
occurrences directly and significantly affected Americans' health or
safety, and all but Proclamation 9844 at least arguably necessitated an
immediate response (regardless of whether one believes the president's
response, in each case, was the correct one).
This is not to say that no misuses have occurred. Setting aside the
border wall declaration and the use of emergency powers to forgive
student loan debt, which are discussed in Part IV of this testimony, it
is questionable whether Iraq's invasion of Kuwait constituted an
emergency for the United States that justified invoking emergency
military powers. And while Cuba's attack on American aircraft and the
attacks of 9/11 constituted real emergencies, it is worrisome that
those states of emergency remain in place today. Emergencies, of
course, can result in long-term or permanent changes in external
conditions necessitating new or different legal authorities. The
solution is for Congress to enact the necessary changes in the law--not
to permit indefinite emergency rule by the president. The Cuba and 9/11
emergencies have become, in effect, ``permanent emergencies,'' which is
one of the phenomena the National Emergencies Act was designed to
prevent.\62\
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\62\ See Spec. Comm. on National Emergencies and Delegated
Emergency Powers, Interim Report, S. Rep. No. 93-1170, at 1 (reprinted
in Spec. Comm. on National Emergencies Source Book, 19 (``A majority of
Americans alive today have lived their entire lives under emergency
rule.'')); 120 Cong. Rec. S15784-86 (daily ed. Aug. 22, 1974)
(statement of Sen. Church) (reprinted in Spec. Comm. on National
Emergencies Source Book, 73) (``[F]ew, if any, foresaw that the
temporary states of emergency declared in 1933, 1939, 1941, 1950, 1970,
and 1971, would become what are now regarded collectively as virtually
permanent states of emergency . . . .'').
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Among other dangers, ``permanent emergencies'' increase the
likelihood that the declaration will be used for purposes unrelated to
the original triggering emergency. The 9/11 state of emergency already
has been pressed into service to deal with problems having nothing to
do with 9/11. President George W. Bush relied on the 9/11 declaration
to call up reservists and implement stop-loss in the Iraq War.\63\ In
2017, President Trump relied on the 9/11 declaration to invoke
emergency powers to fill a chronic shortage in Air Force pilots.\64\
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\63\ See Proclamation No. 7463, 66 Fed. Reg. 48197 (Sept. 14, 2001)
(declaring 9/11 state of emergency and activating 10 U.S.C. Sec.
12302, authorizing the call-up of reservists and thus triggering stop-
loss authority under 10 U.S.C. Sec. 12305); Doe v. Rumsfeld, 435 F.3d
980, 984-985 (9th Cir. 2006) (citing 9/11 declaration as the source of
authority for the exercise of these authorities in Iraq).
\64\ See Exec. Order No. 13814, 82 Fed. Reg. 49271 (Oct. 20, 2017);
Jeff Daniels, ``Trump executive order lets Air Force recall up to 1,000
retired pilots for active duty,'' CNBC, October 21, 2017, https://
www.cnbc.com/2017/10/21/trump-executive-order-lets-air-force-recall-up-
to-1000-retired-pilots.html.
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Still, what is most notable about the record of presidential use of
emergency powers (outside the unique context of IEEPA \65\) is what has
not happened. Despite the lack of strong limits in National Emergencies
Act, presidents generally have not declared national emergencies simply
to grant themselves additional powers when convenient. In most cases,
they have not renewed emergency declarations indefinitely, but revoked
them or allowed them to expire when the threat had passed. And while
nothing in the National Emergencies Act would prevent presidents from
using emergency declarations to access dozens of special powers
unrelated to the emergency at hand, presidents for the most part have
not exploited that license. The Brennan Center's research indicates
that nearly 70% of the powers available to the president when he
invokes a national emergency have never been invoked.\66\
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\65\ Even with respect to IEEPA, presidents have shown some
restraint. As discussed below (see infra Part V.B), IEEPA is written
broadly enough to allow the imposition of punishing economic
consequences on American citizens/residents and organizations. With the
disturbing exception of executive branch actions in the aftermath of 9/
11, however, see Boyle, Checking the President's Sanctions Powers, 12-
14, IEEPA generally has been used to target foreign actors, including
foreign governments, officials, factions, and suspected narcotics
traffickers and terrorist groups.
\66\ See Elizabeth Goitein, ``Trump's Hidden Powers,'' Brennan
Center for Justice, December 5, 2018, https://www.brennancenter.org/
blog/trump-hidden-powers; see also ``A Guide to Emergency Powers and
Their Use,'' Brennan Center for Justice, last updated February 8, 2023,
https://www.brennancenter.org/analysis/emergency-powers.
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IV. Recent Misuses of Emergency Powers
Despite the norm of presidential reticence when it comes to
statutory emergency powers, recent years have seen misuses by
presidents of both parties. In particular, and as discussed below,
President Trump abused the NEA when he declared a national emergency to
secure funding for the border wall, while President Biden improperly
deployed emergency powers to implement student loan debt forgiveness.
A. The Border Wall ``Emergency''
President Trump's emergency declaration in 2019 was an
unprecedented abuse of emergency powers for at least two reasons.
First, the conditions at the border in February 2019 did not meet
any common-sense definition of an emergency. Although Congress did not
include a definition of ``national emergency'' in the National
Emergencies Act, the word ``emergency'' is not meaningless. A quick
sampling of prominent English-language dictionaries reveals some common
elements. Merriam-Webster, for instance, defines ``emergency'' as ``an
unforeseen combination of circumstances or the resulting state that
calls for immediate action'' \67\; the Oxford-English dictionary
similarly defines it as ``[a] serious, unexpected, and often dangerous
situation requiring immediate action.'' \68\
---------------------------------------------------------------------------
\67\ Merriam-Webster, s.v. ``emergency,'' accessed May 18, 2023,
https://www.merriam-webster.com/dictionary/emergency?src=search-dict-
hed.
\68\ Oxford English Dictionary, s.v. ``emergency,'' accessed May
18, 2023, https://en.oxforddictionaries.com/definition/emergency.
---------------------------------------------------------------------------
A basic element of an emergency, in other words, is that the
circumstances in question must be unexpected--and must presumably
represent a change for the worse. In that respect, an ``emergency'' is
fundamentally different than a ``problem.'' Unless it has unexpectedly
gotten worse, a problem that has existed for years or decades cannot
accurately be described as an ``emergency,'' no matter how serious that
problem might be.
It is possible to view unlawful immigration at the southern border
as a significant problem and still acknowledge the simple reality that
in February 2019, it had not taken an unexpected turn for the worse.
Official government data leave no doubt on that point. At the time,
illegal border crossings had been steadily declining since reaching a
high of 1.64 million in 2000. In 2017, they reached their lowest point
(303,916) in 40 years; they remained close to that historic low
(396,579), and well within the fluctuation range for the preceding
several years, in 2018.\69\ The only change in circumstances the
president was able to identify in his proclamation was a significant
increase in families seeking asylum at the border.\70\ This change,
however, was not evidence of ``unlawful migration''--the crisis
identified in the proclamation--as these families were seeking
admission to the United States through lawful means.
---------------------------------------------------------------------------
\69\ See Lori Robertson, ``Illegal Immigration Statistics,''
FactCheck.Org, last updated June 7, 2019, https://www.factcheck.org/
2018/06/illegal-immigration-statistics/; U.S. Border Patrol,
``Southwest Border Sectors: Total Illegal Alien Apprehensions by Fiscal
Year,'' accessed May 18, 2023, https://www.cbp.gov/sites/default/files/
assets/documents/2019-Mar/bp-southwest-border-sector-apps-fy1960-
fy2018.pdf.
\70\ See Proclamation No. 9844, 84 Fed. Reg. 4949 (February 15,
2019).
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Moreover, it was clear from President Trump's own words and actions
that the situation at the southern border did not require ``immediate
action.'' For the first two years of his administration, it apparently
did not occur to the president to consider illegal border crossings a
national emergency. He first dangled the idea that he might declare a
national emergency in early January 2019.\71\ Yet he waited a full six
weeks before declaring the emergency. When he announced the
declaration, he explicitly stated that quick action was not a necessity
in this case, just a personal preference: ``I could do the wall over a
longer period of time. I didn't need to do this. But I'd rather do it
much faster.'' \72\
---------------------------------------------------------------------------
\71\ See Jane C. Timm, ``Fact check: What's a `national emergency'
and can Trump declare one to get his wall?'', NBC News, January 4,
2019, https://www.nbcnews.com/politics/donald-trump/fact-check-what-s-
national-emergency-can-trump-declare-one-n954966.
\72\ White House, ``Remarks by President Trump on the National
Security and Humanitarian Crisis on our Southern Border,'' February 15,
2019, https://www.whitehouse.gov/briefings-statements/remarks-
president-trump-national-security-humanitarian-crisis-southern-border/.
---------------------------------------------------------------------------
Even if illegal border crossings had spiked to an all-time high,
President Trump's declaration would have been an abuse of authority.
That's because President Trump sought funding from Congress to build a
wall along the southern border, and Congress expressly refused to
provide it. Indeed, Congress voted repeatedly not to give the president
the authority and funds that he requested.\73\ The president was thus
invoking emergency powers to thwart the express will of Congress.
President Trump did not try to hide this fact; in the weeks leading up
to the declaration, he repeatedly stated that he would use emergency
powers only if Congress refused to give him what he wanted.\74\
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\73\ Over the course of nearly a year of negotiations, Congress
repeatedly declined to allocate $5.7 billion for the border wall, and
never got a bill to the President with more than $1.6 billion. See,
e.g. Department of Defense Appropriations Act, H.R. 695, 115th Cong.
(2017) (failed in conference after an amendment adding $5.7 billion in
border wall funding passed the House); End the Shutdown and Secure the
Border Act, S.Amdt. 5 to Supplemental Appropriations Act, H.R. 268,
115th Cong. (2019).
\74\ On January 10, President Trump stated his preference for
``do[ing] the deal through Congress,'' but he added that if the deal
did not ``work out,'' he would ``almost . . . definitely'' declare a
national emergency. White House, ``Remarks by President Trump Before
Marine One Departure,'' January 10, 2019, https://www.whitehouse.gov/
briefings-statements/remarks-president-trump-marine-one-departure-30/.
Asked about his threshold for declaring an emergency, President Trump
responded, ``My threshold will be if I can't make a deal with people
that are unreasonable.'' George Sargent, ``Trump: I Have the `Absolute
Right' to Declare a National Emergency if Democrats Defy Me,''
Washington Post, January 9, 2018, https://www.washingtonpost.com/
opinions/2019/01/09/trump-i-have-absolute-right-declare-national-
emergency-if-democrats-defy-me/?utm_term=.124f57619b33. On February 1,
Trump reiterated that he was planning to wait until February 15, the
date on which a temporary appropriations measure would lapse, before
issuing an emergency declaration. ``Excerpts from Trump's Interview
with the New York Times,'' New York Times, February 1, 2019, https://
www.nytimes.com/2019/02/01/us/politics/trump-interview-
transcripts.html; see also ``Transcript: President Trump on `Face the
Nation,' February 3, 2019,'' CBS News, February 3, 2019, https://
www.cbsnews.com/news/transcript-president-trump-on-face-the-nation-
february-3-2019/ (President Trump describing emergency declaration as
an ``alternative'' to the process that Congress was engaged in to avert
another shutdown, which was to end on February 15). He predicted that
``we will be looking at a national emergency, because I don't think
anything is going to happen [in Congress]. I think the Democrats don't
want border security.'' White House, ``Remarks by President Trump in
Meeting on Human Trafficking on the Southern Border,'' February 1,
2019, https://www.whitehouse.gov/briefings-statements/remarks-
president-trump-meeting-human-trafficking-southern-border/.
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Although President Trump was the first president to declare a non-
existent emergency to evade Congress's express will,\75\ he was not the
first to use emergency powers to bypass Congress. Recent research by
the Brennan Center uncovered an incident in which President Obama used
emergency powers, albeit on a much smaller scale, to expand an overseas
naval facility after Congress appropriated funds for the project but
simultaneously withheld authorization. President Obama did not concoct
a new national emergency for this purpose but relied on the 9/11
emergency proclamation.\76\
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\75\ President Reagan issued a national emergency declaration in
1983, which he used to continue certain export controls under IEEPA
after a statute authorizing such controls had lapsed. See Exec. Order
No. 12444, 48 Fed. Reg. 48215 (October 14, 1983). As noted above,
however, the legislative history of IEEPA indicates Congress's
awareness that presidents would be able to use IEEPA for that very
purpose. Importantly, that was not a case in which Congress voted to
deny the president authority or funding for the very action he then
took.
\76\ More specifically, President Obama in 2011 requested $45.2
million to expand a Navy facility in Bahrain. After Senators raised
explicit concerns about that investment, the National Defense
Authorization Act for Fiscal Year 2012 zeroed out its authorization.
See Department of Defense Authorization for Appropriations for Fiscal
Year 2012 and the Future Years Defense Program, Hearings Before the S.
Comm. on Armed Services, 112th Cong. 70, 91, 101 (2011) (questions of
Sen. Ayotte and Manchin); Military Construction and Veterans Affairs,
and Related Agencies Appropriations for Fiscal Year 2012, Hearings
Before a Subcomm. of the S. Comm. on Appropriations, 112th Cong. 121-2
(2011) (question of Sen. Johnson); H. Rept. 112-329, 112th Cong.
(2011); Pub. L. 112-81, Sec. 4601 (2011). Appropriations language was
less clear, but it appears that the full $45.2 million was
appropriated. See Department of Defense, Submission of Budget for
Fiscal Year 2013, C-1 at 154, https://comptroller.defense.gov/Portals/
45/Documents/defbudget/fy2013/fy2013_c1.pdf. Lawmakers cautioned
President Obama against moving forward without authorization, however,
and signaled that such authorization would not be forthcoming. See
Department of Defense Authorization for Appropriations for Fiscal Year
2013 and the Future Years Defense Program, Hearing Before the S. Comm.
on Armed Services, 112th Cong. 62 (2012) (statement of Sen. McCaskill).
At that point, instead of reiterating his request for authorization,
President Obama invoked 10 U.S.C. Sec. 2808 and began to award
contracts for development. Michael J. Vassalotti and Brendan W.
McGarry, Congressional Research Service, Military Construction Funding
in the Event of a National Emergency (2019), 3, https://sgp.fas.org/
crs/natsec/IN11017.pdf.
This incident was a misuse of emergency powers, given that Congress
had withheld authorization for the project. It was nonetheless
distinguishable from President Trump's border wall funding grab in
several respects. First, the border wall was not, properly understood,
a ``military construction project,'' as the Navy facility was. 10
U.S.C. Sec. 2808. Second, the money bound up in Trump's emergency
proclamation was two orders of magnitude larger, and the border wall
itself was a matter of intense public controversy, making the will of
Congress--as representatives of the American people--all the more
important. Finally, as noted above, President Obama did not fabricate a
non-existent emergency to make emergency powers available. The naval
base presumably operated in service of post-9/11 overseas military
operations, and President Obama relied on the 9/11 emergency
declaration. That declaration was unquestionably appropriate, although
it is problematic that Presidents Bush, Obama, and Trump relied on it--
and President Biden relies on it today--long after the immediate crisis
passed.
---------------------------------------------------------------------------
The use of emergency powers as an end-run around Congress is an
abuse of these powers for many reasons. First, as discussed in Parts I
and II, emergency powers were never intended to allow the president to
bypass Congress or to cut Congress out of its constitutional
policymaking role. Emergency declarations merely allow the president to
rely on a different set of statutes--ones that Congress has passed in
advance, on the assumption that true emergencies would unfold too
quickly for Congress to respond in the moment.
If Congress does have time to respond, there is no justification
for bypassing the ordinary legislative process. (In the case of the
border wall declaration, the president purposefully and explicitly gave
Congress time to act.) And if Congress's response is to vote against
the very action that the president seeks to take, that expression of
Congress's will should control. Relying on emergency powers to move
forward in such a case is like a doctor relying on advance medical
directive to withhold life-sustaining treatment when the patient is
conscious and clearly asking to be saved.\77\
---------------------------------------------------------------------------
\77\ See Elizabeth Goitein, ``Trump Is Destroying His Own Case for
a National Emergency,'' Atlantic, January 28, 2019, https://
www.theatlantic.com/ideas/archive/2019/01/trump-has-no-case-national-
emergency/581356/.
---------------------------------------------------------------------------
The abuse was particularly egregious in the case of the border wall
declaration because the Constitution unambiguously prohibits spending
that Congress has not approved. Article I states that ``[n]o Money
shall be drawn from the Treasury, but in Consequence of Appropriations
made by Law.'' \78\ The president thus invoked emergency powers, not
just to get around the will of Congress in general, but to evade an
express limitation in the Constitution.
---------------------------------------------------------------------------
\78\ U.S. Const. art. I, Sec. 9, cl. 7.
---------------------------------------------------------------------------
Even this clear abuse, however, proved extremely difficult to stem.
Several lawsuits were brought. Some plaintiffs struggled to establish
standing.\79\ Judges who sided with the plaintiffs stayed their own
rulings (or had their rulings stayed by appellate courts) pending
appeal.\80\ Overall, courts were unwilling to look behind the
designation of a ``national emergency,'' focusing instead on the
applicability of the particular emergency power the president invoked--
10 U.S.C. Sec. 2808, which authorizes emergency reallocation of
funding only for ``military construction'' projects--and on a provision
of the 2019 Consolidated Appropriations Act that expressly forbade
changes in the funding of projects unless the changes were approved in
an appropriations act.\81\ And the Supreme Court vacated the rulings
against the Trump administration after President Biden terminated the
emergency declaration and stopped construction of the border wall.\82\
---------------------------------------------------------------------------
\79\ See, e.g., U.S. House of Representatives v. Mnuchin, 379
F.Supp. 3d 8 (D.D.C. 2019).
\80\ See, e.g., Sierra Club v. Trump, No. 19-cv-00892-HSG, 2019 WL
2715422 (N.D. Cal. 2019), injunction stayed, Trump v. Sierra Club, 140
S. Ct. 1 (2019); California v. Trump, 407 F.Supp. 3d 869 (N.D. Cal.
2019) (court stayed own injunction); El Paso County v. Trump, 408
F.Supp. 3d 840 (W.D. Texas 2019), injunction stayed, El Paso County v.
Trump, No. 19-51144 (5th Cir. Jan. 8, 2020).
\81\ See Pub. L. No. 116-6, div. D, Sec. 739.
\82\ See Petitioners' Motion to Vacate and Remand, Biden v. Sierra
Club, S. Ct. No. 20-138 (2021), granted, 594 U.S. ___ (Jul. 2, 2021);
Petition for a Writ of Certiorari, Yellen v. House of Representatives,
S. Ct. No. 20-1738 (2021), granted, 595 U.S. ___ (Oct. 12, 2021)
(vacating the lower court's judgment and remanding with instructions to
dismiss as moot).
---------------------------------------------------------------------------
Congress, too, was unable to assert its will. For the first time
since the enactment of the NEA, Congress voted on a resolution to
terminate a national emergency declaration.\83\ The resolution passed
both chambers, with twelve Republican senators crossing party lines to
vote for it.\84\ President Trump vetoed the resolution, however, and
Congress was unable to muster the two-thirds supermajority necessary to
override his veto.\85\ Six months later, the process repeated itself; a
majority of Congress rejected the emergency declaration, yet it stayed
in place.\86\
---------------------------------------------------------------------------
\83\ See supra note 44 and accompanying text.
\84\ See John Haltiwanger, ``The 12 Senate Republicans who defied
Trump and voted to terminate the border wall national emergency,''
Business Insider, March 14, 2019, https://www.businessinsider.com/12-
gop-senators-voted-against-trumps-border-wall-national-emergency-2019-
3.
\85\ See supra notes 44-6.
\86\ See supra notes 44-6.
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B. Student Loan Debt Forgiveness
Although materially different from the border wall declaration,
President Biden's use of emergency powers to forgive student loan debt
was also problematic. Aiming to ``address the burden of growing college
costs,'' President Biden announced in August 2022 that each borrower
with an income lower than $125,000 would be eligible to receive up to
$20,000 in loan forgiveness.\87\ The administration relied on the March
2020 COVID-19 emergency declaration, invoking a statute--the HEROES Act
of 2003--that permits the Secretary of Education to ``waive or modify
any statutory or regulatory provision applicable to'' student financial
aid programs ``as the Secretary deems necessary'' to mitigate the
impacts of a national emergency.\88\
---------------------------------------------------------------------------
\87\ White House, ``Fact Sheet: President Biden Announces Student
Loan Relief for Borrowers Who Need It Most,'' August 24, 2022, https://
www.whitehouse.gov/briefing-room/statements-releases/2022/08/24/fact-
sheet-president-biden-announces-student-loan-relief-for-borrowers-who-
need-it-most/.
\88\ 22 U.S.C. Sec. 1098bb.
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Unlike immigration patterns at the southern border in 2019, there
can be no question that the onset of the COVID-19 pandemic was a
sudden, unforeseen event that justified a declaration of national
emergency. President Biden did not issue a national emergency
declaration where no emergency existed; indeed, the COVID-19 emergency
declaration was issued by President Trump. The crushing burden of
student loan debt, however, has been a serious problem for years. Long
before COVID-19 struck, Biden had spoken about this issue and his
intent to find a solution. In 2015, he advocated for making public
colleges free; \89\ as a presidential candidate, he unveiled proposals
to reform the byzantine system of student-loan repayment and to forgive
$10,000 in student loan debt for graduates who devoted five years to
national or community service.\90\
---------------------------------------------------------------------------
\89\ See Inside Higher Ed, ``Biden Backs Free College,'' October
21, 2015, https://www.insidehighered.com/news/2015/10/22/biden-opting-
out-2016-run-backs-four-years-free-public-college.
\90\ See Bianca Quilantan, ``How Biden would make community college
free and fix student loans,'' Politico, October 8, 2019, https://
www.politico.com/news/2019/10/08/joe-biden-2020-election-community-
college-student-loans-plan-041634.
---------------------------------------------------------------------------
To be sure, the pandemic might well have made the problem of
student loan debt abruptly and unexpectedly worse, creating a true
emergency that required short-term adjustments in loan repayments. Both
President Trump and President Biden had previously used the HEROES Act
for that more limited purpose. President Trump first deployed the law
to eliminate interest accrual and suspend repayments on student loans
in March 2020.\91\ Congress ratified President Trump's suspension of
repayments in its flagship pandemic legislation,\92\ and both President
Trump and President Biden later extended the moratorium.\93\
---------------------------------------------------------------------------
\91\ Federal Student Aid, Fiscal Year 2020 Annual Report, U.S.
Department of Education, November 16, 2020, 38, https://www2.ed.gov/
about/reports/annual/2020report/fsa-report.pdf
\92\ Coronavirus Aid, Relief, and Economic Security Act, Pub. L.
116-136, Sec. 3513 (2020).
\93\ See, e.g., Federal Student Aid Programs, 85 Fed. Reg. 79856
(Dec. 11, 2020); White House, ``Statement by President Biden Extending
the Pause on Student Loan Repayment Through August 31, 2022,'' April 6,
2022, https://www.whitehouse.gov/briefing-room/statements-releases/
2022/04/06/statement-by-president-biden-extending-the-pause-on-student-
loan-repayment-through-august-31st-2022/.
---------------------------------------------------------------------------
At the time President Biden announced his plan to cancel student
loan debt, however, the emergency declaration had been in place for
nearly two and a half years. COVID was no longer a sudden and
unexpected circumstance--indeed, there was every indication that it was
a ``new normal.'' Moreover, in contrast to the previous moratoriums and
postponements, the cancellation of loan balances represented a
permanent solution, not a stopgap measure to address the immediate
impact of the crisis.
As for Congress, lawmakers had ample time over those two and a half
years to consider the interplay between the pandemic and student
financial assistance--and they repeatedly did so. One outcome was a law
that exempted discharges of student loan debt from federal income tax
liability, suggesting a receptiveness to debt cancellation.\94\ But
when Congress directly considered whether to forgive student debt, it
declined to take that step. Lawmakers weighed proposals to cancel
$10,000, $25,000, or $30,000 in debt for certain borrowers; only one of
the bills made it out of committee, and none was enacted.\95\
---------------------------------------------------------------------------
\94\ American Rescue Plan Act, Pub. L. 117-2, Sec. 9675 (2021)
\95\ See Heroes Act, H.R. 6800, 116th Cong. (2020); Student Debt
Emergency Relief Act, H.R. 6363, 116th Cong. (2020); Financial
Protections and Assistance for America's Consumers, States, Businesses,
and Vulnerable Populations Act, H.R. 6321, 116th Cong. (2020);
Emergency Relief for Student Borrowers Act, H.R. 6316, 116th Cong.
(2020); Opportunities for Heroes Act, H.R. 6699, 116th Cong. (2020).
---------------------------------------------------------------------------
In short, student loan debt is a longstanding problem that Biden
had pledged to tackle long before COVID, and his solution was a
permanent measure enacted more than two years after the onset of the
pandemic--and after Congress had declined to pass legislation
implementing loan forgiveness. Against this backdrop, President Biden's
action looks less like a temporary exercise of power to address a
sudden, fast-moving crisis and more like more like a workaround to
implement a long-term policy that lacked the necessary support in
Congress.
Like the border wall declaration, President Biden's use of
emergency powers generated several lawsuits. While these lawsuits
appear to be headed for a more definitive resolution--two are currently
pending before the Supreme Court \96\--the outcome is unlikely to shed
much light on the appropriate exercise of emergency authority. The main
issues before the Court are whether the challengers have standing and
whether the so-called ``major questions doctrine'' precludes the Biden
administration's interpretation of the HEROES Act--an issue not
specific to emergency powers.\97\
---------------------------------------------------------------------------
\96\ See Biden v. Nebraska, S. Ct. No. 22-506 (2023); Department of
Education v. Brown, S. Ct. No. 22-535 (2023).
\97\ That said, if the Court were to apply the ``major questions
doctrine'' in this case, it could have significant implications for
emergency powers in general, which are often deliberately written in
broad terms to grant presidents maximal discretion. Many of these laws
would presumably fail to pass muster under the ``major questions
doctrine.'' At the same time, given this Court's extreme deference to
the president on matters of national security, it is hard to imagine
the Court striking down a president's exercise of emergency powers that
expand military or law enforcement authority, no matter how broadly
worded the underlying statute. The result could be a system in which
emergency powers designed to address the social or economic effects of
crises would be neutered while those designed to increase the
government's coercive powers would retain their full force.
---------------------------------------------------------------------------
In the meantime, in March of this year, the COVID-19 declaration
became the first national emergency declaration since the National
Emergencies Act was passed to be terminated by Congress. Regardless of
one's position on whether that particular declaration should have
remained in place, it is encouraging to see Congress reasserting its
powers under NEA--limited as they are--after decades of seeming apathy.
However, the joint resolution that Congress passed likely would not
have become law without President Biden's signature. President Biden
had already pledged to rescind the declaration in May, so the vote was
more of a symbolic move than an actual reining in of presidential
authority.
V. How--and Why--Congress Must Act
President Trump's border wall declaration created a worrisome
precedent. It signaled that presidents can declare emergencies to
address any problem they consider to be serious, however longstanding,
and that they can use those emergency declarations to give themselves
powers Congress has expressly withheld. President Biden opened that
door a bit wider through his own questionable use of emergency powers.
This is a dangerous state of affairs. The next time a president
decides to declare an emergency for the sake of political convenience,
he or she could invoke powers far more potent than the ones President
Trump and President Biden invoked. The Brennan Center has catalogued
135 statutory provisions that become available to presidents when they
declare a national emergency (up from 123 provisions when the Brennan
Center first issued its report in 2018). Ninety-eight of these require
nothing more than the president's signature. Twelve contain a de
minimis restriction, such as a requirement than an agency head certify
the necessity of the measure (something the president could simply
order the agency head to do). Only twenty-five of these powers contain
a more substantive restriction, such as a requirement that the
emergency have certain specified effects.\98\
---------------------------------------------------------------------------
\98\ See Goitein, ``Trump's Hidden Powers,'' Brennan Center for
Justice; ``A Guide to Emergency Powers and Their Use,'' Brennan Center
for Justice, last updated February 8, 2023, https://
www.brennancenter.org/analysis/emergency-powers.
---------------------------------------------------------------------------
While many of the authorities provided in these 135 provisions are
measured and sensible, some seem like the stuff of authoritarian
regimes. For example, merely by signing a declaration of national
emergency, the president may take over or shut down radio stations;
\99\ if the president goes further and declares a ``threat of war,'' he
may take over or shut down facilities for wire communication--a
provision that arguably could allow him to assert control over U.S.-
based Internet traffic.\100\ Other powers would allow the president or
members of his administration to freeze Americans' assets and bank
accounts (IEEPA),\101\ to exercise broad and unspecified powers over
domestic transportation,\102\ to detail members of the U.S. armed
forces to any country,\103\ to prohibit or limit the export of any
agricultural commodity \104\--even to suspend the prohibition on
government testing of chemical or biological agents on unwitting human
subjects.\105\
---------------------------------------------------------------------------
\99\ See 47 U.S.C. Sec. 606(c).
\100\ See 47 U.S.C. Sec. 606(d); see also Elizabeth Goitein, ``The
Alarming Scope of the President's Emergency Powers,'' Atlantic,
January/February 2019, https://www.theatlantic.com/magazine/archive/
2019/01/presidential-emergency-powers/576418/.
\101\ See 50 U.S.C. Sec. Sec. 1701 et seq.
\102\ See 49 U.S.C. Sec. 114(g).
\103\ See 10 U.S.C. Sec. 712(a)(3).
\104\ See 7 U.S.C. Sec. 5712(c).
\105\ See 50 U.S.C. Sec. 1515.
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Indeed, emergency powers could be deployed to undermine democracy
itself. As reported by various outlets in 2022, allies of former
President Trump advocated that he invoke a range of emergency powers to
overturn the results of the 2020 presidential election. They urged the
president to declare a national emergency and invoke IEEPA in order to
seize voting machines; to invoke the Insurrection Act; and to declare
martial law.\106\ For reasons the Brennan Center has laid out, none of
these suggestions would have provided a legal basis for overturning the
election results.\107\ Had President Trump nonetheless implemented
these measures, they undoubtedly would have disrupted the transition of
power even further, and created even greater chaos and (potentially)
violence, than the insurrection of January 6 on its own. Moreover,
while there are no emergency powers that allow a president to change
the outcome of an election, some of the authorities that become
available in a declared national emergency could be used to undermine
the fairness of the election itself--e.g., by creating conditions that
make it harder for people to vote.\108\
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\106\ See Betsy Woodruff Swan, ``Read the never-issued Trump order
that would have seized voting machines,'' Politico, January 21, 2022,
https://www.politico.com/news/2022/01/21/read-the-never-issued-trump-
order-that-would-have-seized-voting-machines-527572; Tina Nguyen,
``MAGA leaders call for the troops to keep Trump in office,'' Politico,
December 18, 2020, https://www.politico.com/news/2020/12/18/trump-
insurrection-act-presidency-447986; Luke Broadwater, ``Fearing a Trump
Repeat, Jan. 6 Panel Considers Changes to Insurrection Act,'' New York
Times, April 19, 2022, https://www.nytimes.com/2022/04/19/us/politics/
trump-jan-6-insurrection-act.html; Jamie Gangel, Jeremy Herb, and
Elizabeth Stuart, ``Mark Meadows' 2,319 text messages reveal Trump's
inner circle communications before and after January 6,'' CNN, April
25, 2022, https://www.cnn.com/2022/04/25/politics/mark-meadows-texts-
2319/index.html.
\107\ See Joseph Nunn and Andrew Boyle, ``There Are No
Extraordinary Powers a President Can Use to Reverse an Election,''
Brennan Center for Justice, March 3, 2021, https://
www.brennancenter.org/our-work/analysis-opinion/there-are-no-
extraordinary-powers-president-can-use-reverse-election.
\108\ See Elizabeth Goitein, ``The Alarming Scope of the
President's Emergency Powers,'' Atlantic, 46-47, January/February 2019,
https://www.theatlantic.com/magazine/archive/2019/01/presidential-
emergency-powers/576418/.
---------------------------------------------------------------------------
It is incumbent on Congress to prevent these types of abuse. There
are bills pending before Congress, as well as other public reform
proposals, that would preserve the president's flexibility in times of
crisis while mitigating against the risk of abuse and preventing
``permanent emergencies.''
A. National Emergencies Act Reform
Following President Trump's border wall declaration, several
lawmakers introduced bills to amend the National Emergencies Act. Most
of them contained the same central reform: a presidentially declared
national emergency would automatically terminate after 30 days (or a
similarly short period) unless Congress voted to approve the
declaration. Expedited procedures would enable Congress to move
quickly; they would also allow any member to force a vote and would
prohibit filibusters in the Senate. This would ensure that the
emergency declaration would not expire through obstructionism or
inertia, and that the outcome would reflect the will of a majority of
Congress. If Congress approved the declaration, it could stay in place
for up to a year; if the president wished to renew it, each yearly
renewal would again require Congress's approval.
This approach, versions of which are used by many other
countries,\109\ is more consistent with the core purpose of emergency
powers. It would give the president ready access to enhanced
authorities when he needs them most--i.e., when the emergency is in
progress and Congress has not had time to address it. Once Congress has
had time to act, however--and history shows that Congress can act quite
swiftly in the face of true emergencies \110\--it should be Congress's
decision as to whether emergency authorities are a good fit for the
crisis at hand. Critically, that would remove the perverse incentive
that exists when the government actor who declares the emergency is the
same one who receives additional powers.
---------------------------------------------------------------------------
\109\ See, e.g., Spanish Constitution, Sec. 116, https://
www.constituteproject.org/constitution/Spain_2011?lang=en; Constitution
of the Fifth Republic (France) art. 36, https://
www.constituteproject.org/constitution/France_2008?lang=en;
Constitution of Greece art. 48, https://www.constituteproject.org/
constitution/Greece_2008?lang=en.
\110\ For instance, within weeks of the attacks of 9/11, Congress
passed the USA PATRIOT Act, sweeping legislation that ran 342 pages and
made changes to more than 15 different laws. Lisa Finnegan Abdolian and
Harold Takooshian, ``The USA PATRIOT Act: Civil Liberties, the Media,
and Public Opinion,'' Fordham Urban Law Journal 30:4 (2003): 1429.
---------------------------------------------------------------------------
A bill featuring this reform, the ARTICLE ONE Act, was reported out
of the Senate Homeland Security and Government Affairs Committee in
2019.\111\ It received broad bipartisan support: The bill was
introduced by Senator Mike Lee (R-Utah) and cosponsored by 18
Republican Senators, yet every Democrat on the committee voted for it,
and several Democrats signed a bipartisan letter to Senate party
leaders urging them to bring the bill to the floor.\112\ Subsequently,
versions of the ARTICLE ONE Act were incorporated into two major
Democratic reform packages--the Protecting Our Democracy Act (PODA),
which was passed by the House in December 2021,\113\ and the
Congressional Power of the Purse Act (CPPA) \114\--as well as a
bipartisan bill to reform national security powers, titled the National
Security Powers Act (NSPA) in the Senate \115\ and the National
Security Reforms and Accountability Act (NSRAA) in the House.\116\ All
told, 26 sitting Democratic senators and 15 sitting Republican senators
have sponsored or cosponsored NEA reform legislation that includes this
core change.
---------------------------------------------------------------------------
\111\ S. Rep. No. 116-159, 116th Cong. (Nov. 2019).
\112\ See Office of Sen. Mike Lee, ``Bipartisan Letter Urges
Leadership to Have Full Senate Consider ARTICLE ONE Act,'' October 18,
2019, https://www.lee.senate.gov/2019/10/bipartisan-letter-urges-
leadership-to-have-full-senate-consider-article-one-act.
\113\ H.R. 5314, 117th Cong. (December 9, 2021); S. 2921, 117th
Cong. (2021).
\114\ H.R. 6628, 116th Cong. (2020); S. 3889, 116th Cong. (2020).
\115\ S. 2391, 117th Cong. (2021).
\116\ H.R. 5410, 117th Cong. (2021).
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Although the congressional approval requirement remains the heart
of the reform, PODA, the CPPA, and the NSPA/NSRAA added various
provisions to further safeguard against abuse. One such provision is a
ban on ``permanent emergencies'' that would prohibit emergency
declarations from continuing for more than five years. At the five-year
mark, it cannot fairly be said that the circumstances necessitating
action are unexpected or extraordinary; they have effectively become a
``new normal,'' and should be addressed through non-emergency measures.
There is some risk that this approach could lead Congress to enact
permanent expansions of presidential power where temporary ones would
suffice. That concern, in my view, is better addressed by including
sunsets in the relevant legislation, rather than allowing supposedly
temporary powers to effectively become permanent through routine
renewals of emergency declarations.
Another provision would place two key limits on which statutory
authorities a president may invoke during a declared national
emergency. First, it would specify that the authorities invoked must
relate to the nature of, and may be used only to address, that
emergency. There is no reason why an emergency declaration should give
the president access to dozens of powers that are facially irrelevant
to the emergency at hand. This state of affairs presents an
irresistible temptation to keep emergency declarations in effect as
long as possible, as they may be used to address other problems--
emergencies or otherwise--that might come up in the future. Second, the
added provision would make very clear that emergency powers cannot be
used to circumvent Congress. Specifically, it would prohibit the use of
emergency powers to take a specific action if Congress, following the
events giving rise to the emergency declaration, has withheld
authorization or funding for that action.
Finally, each of the bills, to varying degrees, enhances
transparency regarding how presidents use the emergency powers Congress
has granted them. Currently, the president is required to report to
Congress only on emergency-related expenditures, and there is no
requirement to make those reports public. All of the NEA reform bills
cited above would require the president to detail, not only the
expenses incurred, but the activities and programs implemented, and the
NSPA and NSRAA would require the president to make those reports public
(although classified indexes could be submitted where necessary).
Any of these bills would represent a significant improvement over
the status quo, and each would honor the original intent behind the
National Emergencies Act by allowing Congress to serve as a meaningful
check on the executive branch.
B. IEEPA Reform
As noted above, Congress generally has acquiesced in presidents'
use of IEEPA to impose economic sanctions in a wide range of
circumstances, including situations that pose no imminent threat to
U.S. security. Currently, there are 38 sanctions regimes that rely on
IEEPA and that most lawmakers consider uncontroversial.\117\ Reflecting
that fact, many of the NEA reform bills discussed above include a
carveout for national emergency declarations that invoke only IEEPA. In
other words, under these bills, IEEPA invocations would not be subject
to the requirement of congressional approval within 30 days of the
declaration and yearly thereafter.
---------------------------------------------------------------------------
\117\ See ``Declared National Emergencies Under the National
Emergencies Act,'' Brennan Center for Justice, last updated May 11,
2023, https://www.brennancenter.org/our-work/research-reports/declared-
national-emergencies-under-national-emergencies-act.
---------------------------------------------------------------------------
It would be a mistake, however, to leave IEEPA as-is. IEEPA
provides some of the most potent authorities the president possesses in
a national emergency. On its face, the law can be used to freeze the
U.S.-based assets of nearly anyone, and to prevent people and entities
under U.S. jurisdiction from engaging in any financial transactions
with that person, as long as the president deems the action necessary
to address a foreign threat.\118\ Although IEEPA has largely been used
to impose economic sanctions on hostile foreign actors, such as the
government of Iran or international terrorist groups, nothing in the
statute limits its application to such entities. President Trump, for
instance, used IEEPA to impose sanctions on International Criminal
Court staff in response to the Court's investigations of alleged war
crimes committed by U.S. and allied personnel.\119\
---------------------------------------------------------------------------
\118\ See 50 U.S.C. Sec. Sec. 1701-02.
\119\ See Exec. Order No. 13928, 85 Fed. Reg. 36139 (June 11,
2020).
---------------------------------------------------------------------------
Indeed, the law can be--and has been--used to target American
citizens inside the United States and deny them access to their own
property, with nothing resembling due process. After 9/11, for
instance, several Muslim American charities and individuals were
sanctioned based on suspicions that their activities benefited
terrorist groups overseas. The targets were provided no notice of the
reason for their designation, let alone the evidence on which the
government relied, and were not afforded a hearing with the government.
Several charities were forced to shut down without the government ever
having to prove its case in court. As for the individuals, they endured
several months in a terrifying limbo, unable to pay their bills or hold
a job without the government's permission, before the government
dropped the sanctions for lack of evidence.\120\
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\120\ See Boyle, Checking the President's Sanctions Powers, 12-14;
Jake Tapper, ``A Post-9/11 American Nightmare,'' Salon, September 5,
2002, https://www.salon.com/2002/09/05/jama/.
---------------------------------------------------------------------------
In addition, some sanctions regimes have had devastating impacts on
innocent civilian populations overseas. IEEPA contains a humanitarian
exemption, but it is relatively narrow, permitting only donations of
certain types of goods. Moreover, the law allows presidents to waive
the exemption, and they routinely do so. The executive branch has
effectively replaced the statute's humanitarian exemption with regime-
specific ``general licenses'' (i.e., licenses available without an
individual application) that allow certain transactions for
humanitarian purposes. These licenses, however, have proven
insufficient. Fearing the dire financial consequences of being found in
violation of sanctions, companies and financial institutions invariably
``overcomply'' and avoid even those transactions that are
licensed.\121\ There is mounting evidence that U.S. sanctions have
significantly exacerbated humanitarian crises in Venezuela,\122\
Afghanistan,\123\ Iran,\124\ and North Korea.\125\
---------------------------------------------------------------------------
\121\ See Boyle, Checking the President's Sanctions Powers, 16.
\122\ See, e.g., Washington Office on Latin America, ``New Report
Documents How U.S. Sanctions Have Directly Aggravated Venezuela's
Economic Crisis,'' October 29, 2020, https://www.wola.org/2020/10/new-
report-us-sanctions-aggravated-venezuelas-economic-crisis/.
\123\ See, e.g., Ellen Ioanes, ``US policy is fueling Afghanistan's
humanitarian crisis,'' Vox, January 22, 2022, https://www.vox.com/2022/
1/22/22896235/afghanistan-poverty-famine-winter-humanitarian-crisis-
sanctions.
\124\ See, e.g., ``The humanitarian impact of US sanctions on
Iran,'' Atlantic Council, October 29, 2019, https://
www.atlanticcouncil.org/event/the-humanitarian-impact-of-us-sanctions-
on-
iran/.
\125\ See, e.g., Jessica J. Lee, ``It's Time to Reexamine US
Sanctions on North Korea,'' Diplomat, March 9, 2021, https://
thediplomat.com/2021/03/its-time-to-reexamine-us-sanctions-on-north-
korea/.
---------------------------------------------------------------------------
Finally, IEEPA sanctions are marred by a lack of transparency in
licensing, leading to the appearance (and perhaps the reality) of
corruption. Individuals or companies may apply to the Treasury
Department for ``specific licenses'' enabling them to conduct
transactions that would otherwise be barred by sanctions. Such licenses
can be highly lucrative and provide a competitive advantage to
recipients. Yet there are no regulatory standards for issuing them, and
recipients are not publicly identified. Investigative reporting in
recent years has uncovered multiple instances of licenses being granted
to well-connected applicants, including campaign donors, after members
of Congress or high-level executive officials intervened on their
behalf.\126\
---------------------------------------------------------------------------
\126\ See Boyle, Checking the President's Sanctions Powers, 16-17.
---------------------------------------------------------------------------
Congress should undertake reform of IEEPA that addresses the unique
considerations it presents. The Brennan Center recommended several
changes to the law in its 2021 report, Checking the President's
Sanctions Powers. Most notably, IEEPA should be amended to build in due
process protections, including meaningful notice and judicial review,
for Americans who find themselves in sanctions' crosshairs. The law's
humanitarian exception should be broadened and the waiver provision
narrowed. The Treasury Department should be required to articulate
standards for the issuance of specific licenses and make its licensing
decisions available to Congress for review. And the role of Congress as
a check on executive overreach should be strengthened. If Congress
assesses that yearly approval of each individual sanctions regime would
be overly burdensome, it should create an alternative approval process
in which lawmakers vote on sanctions as a package, and any member may
offer an amendment to strip out an individual sanctions regime.\127\
---------------------------------------------------------------------------
\127\ See Boyle, Checking the President's Sanctions Powers, 20-24.
---------------------------------------------------------------------------
C. Insurrection Act Reform
One particularly dangerous statutory emergency authority falls
outside the National Emergencies Act framework: the Insurrection Act.
This law--in fact, an amalgamation of laws passed between 1792 and 1874
\128\--authorizes the president to deploy the U.S. armed forces
domestically and use them to quell civil unrest or enforce the law in a
crisis. In this way, it operates as an exception to the Posse Comitatus
Act,\129\ the law that generally bars federal military personnel from
participating in civilian law enforcement.\130\
---------------------------------------------------------------------------
\128\ See Elizabeth Goitein and Joseph Nunn, ``An Army Turned
Inward: Reforming the Insurrection Act to Guard Against Abuse,''
Journal of National Security Law and Policy 13 (2023): 362.
\129\ 18 U.S.C. Sec. 1835.
\130\ See generally Joseph Nunn, ``The Posse Comitatus Act
Explained,'' Brennan Center for Justice, October 14, 2021, https://
www.brennancenter.org/our-work/research-reports/posse-comitatus-act-
explained.
---------------------------------------------------------------------------
The use of the military as a domestic police force represents a
sharp departure from core constitutional values. The framers understood
that military interference in civilian affairs threatens democracy and
individual liberty, and they were careful to subordinate the military
to civilian authorities. But they also recognized that a true crisis
might necessitate military intervention. They left it to Congress to
strike a judicious balance between these competing considerations.\131\
---------------------------------------------------------------------------
\131\ See U.S. Const. art. I, Sec. 8, cl. 15 (empowering Congress
to ``provide for calling forth the Militia to execute the Laws of the
Union, suppress Insurrections and repel Invasions'').
---------------------------------------------------------------------------
The Insurrection Act fails utterly in this task. Its text is
archaic, vague, and overbroad, granting the president almost limitless
discretion to use troops for domestic law enforcement. For instance,
one of its provisions permits deployment to suppress any ``unlawful
combination'' or ``conspiracy'' that ``opposes or obstructs the
execution of the laws of the United States.'' \132\ Taken literally,
this would allow the president to deploy federal forces in response to
two people conspiring to intimidate a witness in a federal trial. A
more realistic (and worrisome) abuse scenario would involve the use of
troops to suppress an unpermitted but peaceful protest against a
controversial executive order.
---------------------------------------------------------------------------
\132\ 10 U.S.C. Sec. 253.
---------------------------------------------------------------------------
In such cases, the Insurrection Act allows the president to respond
``by using the militia or the armed forces, or both, or by any other
means'' (emphasis added).\133\ This alarming delegation of unlimited
power explains why the Oath Keepers and similar groups believed that
President Trump would draft them into service by invoking the
Insurrection Act on January 6.\134\ Congress has defined ``militia'' to
include ``all able-bodied males at least 17 years of age and . . .
under 45 years of age who are, or who have made a declaration of
intention to become, citizens of the United States and of female
citizens of the United States who are members of the National Guard.''
\135\ A substantial portion of white supremacist organizations' members
would likely meet that definition, and at least in theory, the others
could be mobilized under the ``any other means'' language.
---------------------------------------------------------------------------
\133\ Id.
\134\ Alan Feuer, ``Oath Keepers Leader Sought to Ask Trump to
Unleash His Militia,'' New York Times, May 4, 2022, https://
www.nytimes.com/2022/05/04/us/politics/oath-keepers-jan-6-riot.html.
\135\ 10 U.S.C. Sec. 246.
---------------------------------------------------------------------------
Despite this extraordinary delegation of power, the Insurrection
Act in its current form contains virtually no checks against abuse.
Previous versions of the law required advance judicial sign-off and
placed time limits on the use of troops to enforce the law absent
congressional approval. But Congress removed those provisions, leaving
no role for the other branches of government.\136\ The Supreme Court
has held that the statute gives the president complete discretion to
decide whether deployment is warranted.\137\
---------------------------------------------------------------------------
\136\ See Goitein and Nunn, ``An Army Turned Inward,'' 363, 365.
\137\ See Martin v. Mott, 25 U.S. 19, 30 (1827).
---------------------------------------------------------------------------
Such a broad and unrestricted delegation of authority was dangerous
at any time in our nation's history. In the modern era, it is also
entirely unjustified. Most of the law's provisions were designed for
the Civil War and the terrorist insurgency that followed in the former
Confederacy. These threats were extinguished long ago, yet the powers
crafted to address them have lingered, virtually unchanged, for 150
years. Furthermore, when the law was last amended, police departments
were still in their infancy and federal law enforcement was all but
nonexistent.\138\ Many situations that might have required assistance
from the military in the 18th and 19th centuries would be well within
the capacity of today's law enforcement to handle. In short, nothing
about the Insurrection Act is tailored to the needs of the United
States in 2023.
---------------------------------------------------------------------------
\138\ See Goitein and Nunn, ``An Army Turned Inward,'' 372.
---------------------------------------------------------------------------
That is not to say that military intervention in domestic crises is
never appropriate. In the late 1950s and early 1960s, for instance,
Presidents Dwight D. Eisenhower and John F. Kennedy both invoked the
Insurrection Act to enforce federal court orders desegregating schools
in the South. Other presidents, however, have used the law to break
strikes and subdue labor movements.\139\ And in the weeks leading up to
January 6, President Trump's allies urged him to invoke the
Insurrection Act as part of a strategy to overturn the election
results.\140\ Indeed, it would have been frighteningly easy for
President Trump to invoke the law on January 6 to shut down Congress,
thus delaying or preventing certification of the vote on the pretext of
keeping the peace.
---------------------------------------------------------------------------
\139\ See Goitein and Nunn, ``An Army Turned Inward,'' 367.
\140\ See Jacqueline Alemany, Josh Dawsey, and Tom Hamburger,
``Talk of martial law, Insurrection Act draws notice of Jan. 6
committee,'' Washington Post, April 27, 2022, https://
www.washingtonpost.com/politics/2022/04/27/talk-martial-law-
insurrection-act-draws-notice-jan-6-committee/.
---------------------------------------------------------------------------
In September 2022, the Brennan Center submitted a statement to the
House Select Committee to Investigate the January 6th Attack on the
United States Capitol addressing the Insurrection Act. The statement
included a legislative reform proposal, developed in consultation with
numerous experts and several allied organizations, that would
meaningfully guard against abuse of the powers conferred by the Act
while preserving the ability to deploy troops in a true crisis.\141\
---------------------------------------------------------------------------
\141\ See Goitein and Nunn, Statement to the January 6th Committee
on Reforming the Insurrection Act. The proposal was subsequently
published as a law review article. See Goitein & Nunn, ``An Army Turned
Inward.''
---------------------------------------------------------------------------
First, the proposal more specifically and narrowly defines both the
criteria for deployment and what the president may do in response. For
instance, while an insurrection against federal or state government
would always warrant deployment, obstruction of federal law would
trigger deployment authority only if it deprived a group or class of
people of their constitutional rights--explicitly including the right
to vote--or if it created an immediate threat to public safety that
could not be handled by state or federal law enforcement. In responding
to such crises, the president could deploy active-duty armed services
or call the National Guard into federal service, but he could not
deputize private citizens to act as soldiers. Moreover, the proposal
would clarify that the Insurrection Act does not authorize the
suspension of habeas corpus--holding people without trial--or the
complete displacement of civilian authority, also known as martial
law.\142\
---------------------------------------------------------------------------
\142\ See Tim Lau and Joseph Nunn, ``Martial Law Explained,''
Brennan Center for Justice, September 10, 2020, https://
www.brennancenter.org/our-work/research-reports/martial-law-explained.
---------------------------------------------------------------------------
To ensure adherence to these limitations, the proposal includes
mechanisms for congressional and judicial oversight. At the time of
deployment, the president, secretary of defense, and attorney general
would be required to submit a joint certification and report to
Congress setting forth certain basic information. The authority
provided by the law would expire automatically after seven days unless
approved by Congress, using expedited procedures that would prohibit
filibustering and allow any member to force a vote. Finally, courts
would be authorized to review whether the criteria for deployment were
met--employing a deferential ``substantial evidence'' standard of
review to ensure that courts did not simply replace the president's
judgment with their own.
D. Disclosure of Presidential Emergency Action Documents
As noted in Part I of this testimony, the Constitution gives the
president no explicit emergency powers. Nonetheless, modern presidents
have increasingly claimed that the Constitution provides them with
broad inherent powers to act during emergencies in ways that Congress
need not authorize and cannot restrict. These radical claims, often set
forth in Department of Justice memoranda that are not shared with
Congress or the public,\143\ find little support in constitutional
history \144\ and have largely escaped testing in the courts. Yet they
may well be at the center of a category of emergency planning tools
known as ``presidential emergency action documents,'' or PEADs.
---------------------------------------------------------------------------
\143\ For example, the so-called ``torture memos'' issued by the
Department of Justice's Office of Legal Counsel, which opined that the
statutory prohibition on torture could not constrain the president's
Article II commander-in-chief powers, were closely held even within the
executive branch and became public only when one of the memos was
leaked to the press. See Katherine Hawkins, ``The Lies Hidden Inside
the Torture Report,'' Politico, January 28, 2015, https://
www.politico.com/magazine/story/2015/01/torture-report-lies-114693/.
\144\ See Saikrishna Prakash, ``The Imbecilic Executive,'' Virginia
Law Review 99, no. 7 (Nov. 2013): 1361-1433; but cf. Richard A. Posner,
Not a Suicide Pact: The Constitution in a Time of National Emergency
(New York: Oxford University Press, 2006).
---------------------------------------------------------------------------
PEADs are executive orders, proclamations, and messages to Congress
that are prepared in anticipation of a range of emergency scenarios,
ready for the president to sign and put into effect the moment one of
those scenarios comes to pass. Created during the Eisenhower
administration as part of continuity-of-government plans in the event
of a nuclear attack,\145\ PEADs have since been expanded for use in
other emergency situations where the normal operation of government is
impaired.\146\ As one government document describes them, they are
designed ``to implement extraordinary presidential authority in
response to extraordinary situations.'' \147\
---------------------------------------------------------------------------
\145\ See Matthew L. Conaty, ``The Atomic Midwife: The Eisenhower
Administration's Continuity-of-Government Plans and the Legacy of
`Constitutional Dictatorship,' '' Rutgers Law Review 67 (2010): 627.
\146\ See Federal Emergency Management Agency, ``Manual 5400.2,''
effective February 29, 2000, 111; see also ``Presidential Emergency
Action Documents,'' Brennan Center for Justice, last updated May 26,
2022, https://www.brennancenter.org/our-work/research-reports/
presidential-emergency-action-documents.
\147\ Stephen G. Burns, ``Update of Presidential Emergency Action
Documents,'' Nuclear Regulatory Commission, July 23, 2004, https://
www.governmentattic.org/18docs/NRCupdtPEADS_2004.pdf.
---------------------------------------------------------------------------
PEADs may be the best-kept secret in Washington; none has ever been
publicly released or even leaked. Indeed, it appears that they are not
even subject to congressional oversight. Although the executive branch
is required by law to report even the most sensitive covert military
and intelligence operations to at least some members of Congress,\148\
there is no such disclosure requirement for PEADs, and no evidence that
the documents have ever been shared with relevant congressional
committees.
---------------------------------------------------------------------------
\148\ See National Security Act, Pub. L. 102-88, title VI, Sec.
603(a)(2), 105 Stat. 442 (1947) (codified at 50 U.S.C. Sec. 3093).
---------------------------------------------------------------------------
Although PEADs themselves remain hidden from the public eye,
various government records have become available over the years that
discuss them. Through these records, we know that there were PEADs
during the early decades of the Cold War designed to authorize the
roundup and detention of ``dangerous persons'' within the United
States; suspend the writ of habeas corpus by presidential order;
provide for various forms of martial law; issue a general warrant
permitting search and seizure of persons and property; establish
military areas such as those created during World War II; restrict
Americans' ability to travel overseas; and authorize censorship of news
reports.\149\
---------------------------------------------------------------------------
\149\ See Elizabeth Goitein and Andrew Boyle, ``Trump Has Emergency
Powers We Aren't Allowed to Know About,'' New York Times, April 10,
2020, https://www.nytimes.com/2020/04/10/opinion/trump-coronavirus-
emergency-powers.html; ``Presidential Emergency Action Documents,''
Brennan Center for Justice, last updated May 26, 2022, https://
www.brennancenter.org/our-work/research-reports/presidential-emergency-
action-documents.
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There is far less public information about the contents of modern
PEADs. We do know, however, that there were 56 PEADs in effect as of
2017, and that the Trump administration was engaged in a processing of
reviewing them.\150\ And last year, the Brennan Center procured the
first glimpse into the contents of post-9/11 PEADs when it received 500
pages of records in response to a 2018 Freedom of Information Act
request submitted to the George W. Bush Presidential Library. (An
additional 6,000 pages of records were withheld in full because they
are classified.)
---------------------------------------------------------------------------
\150\ See Commerce, Justice, Science and Related Agencies
Appropriations for 2018, Hearing Before a Subcomm. Of the H. Comm. on
Appropriations, 115th Cong. 625 (2017) (Department of Justice
Justification of the Budget Estimates).
---------------------------------------------------------------------------
The records pertain to reviews of PEADs that the Bush
administration conducted in 2004, 2006, and 2008, with an eye toward
refreshing the documents and ensuring that they provided adequate
powers to address the threat of terrorism.\151\ They reveal the
existence of at least one PEAD--and the possible adoption of three
additional PEADs--designed to implement the Communications Act, a World
War II-era statute that grants the president authority to shut down or
seize control of wire communications facilities upon proclamation
``that there exists a state or threat of war involving the United
States.'' \152\ The Bush administration also appeared to review a
preexisting PEAD concerning the suspension of habeas corpus, in light
of a June 2008 Supreme Court decision recognizing Guantanamo Bay
prisoners' constitutional right to seek judicial review of their
detention.\153\ (There is no indication that the administration
withdrew or cancelled the PEAD.) And the administration at least
considered restricting U.S. passports during a crisis, based on a 1978
law that allows the government to curtail international movement based
on ``war,'' ``armed hostilities,'' or ``imminent danger to the public
health or the physical safety of United States travellers.'' \154\
---------------------------------------------------------------------------
\151\ See Benjamin Waldman, ``New Documents Illuminate the
President's Secret, Unchecked Emergency Powers,'' Brennan Center for
Justice, May 26, 2022, https://www.brennancenter.org/our-work/analysis-
opinion/new-documents-illuminate-presidents-secret-unchecked-emergency-
powers (setting forth the Brennan Center's analysis of the records);
``Presidential Emergency Action Documents,'' Brennan Center for
Justice, last updated May 26, 2022, https://www.brennancenter.org/our-
work/research-reports/presidential-emergency-action-documents#gwb
(providing links to the records).
\152\ Pub. L. 77-413 (1942) (codified as amended at 47 U.S.C. Sec.
606(d)).
\153\ See Boumediene v. Bush, 553 U.S. 723 (2008).
\154\ 22 U.S.C. Sec. 211a.
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Advance planning for emergencies is prudent, and there is nothing
inherently problematic about drafting orders and directives in advance
of foreseeable crises. But emergencies cannot justify unconstitutional
measures, and planning to violate the Constitution or ignore statutory
limitations is a grotesque abuse of power. Moreover, Congress, as an
equal partner in matters of national security, has both the prerogative
and the obligation to conduct oversight of the executive branch's
emergency planning \155\--in part to ensure that the executive branch
does not stray beyond the law.
---------------------------------------------------------------------------
\155\ See generally Vicki Divoll, ``The `Full Access Doctrine':
Congress's Constitutional Entitlement to National Security Information
from the Executive,'' Harvard Journal of Law and Public Policy 34
(2011): 493. Although the Constitution assigns the president the role
of Commander in Chief, see U.S. Const. art. 2, Sec. 2, cl. 1, it
grants Congress several equally significant powers in the areas of
military, national security, and foreign affairs. See, e.g., U.S.
Const. art. 1, Sec. 8, cls. 1 (power to ``provide for the common
Defence''), 11 (power to declare war), 12 (power to raise armies), 13
(power to ``maintain a Navy''), 14 (power to regulate the armed
forces), 15 (power to ``call[] forth the Militia''); art. 2, Sec. 2,
cl. 2 (requiring Senate advice and consent for treaties and certain
presidential appointments).
---------------------------------------------------------------------------
In 2020, Senator Ed Markey (D-Mass.) introduced a bill titled
``Restraint of Executive in Governing Nation (REIGN) Act'' that would
require the president to disclose PEADs to the relevant oversight
committees in Congress.\156\ Versions of the bill were subsequently
incorporated into PODA and the NSRAA. This is an extremely modest and
tailored solution. Neither the REIGN Act nor PODA requires any
disclosure to the public, and while the NSRAA mandates a
declassification review, the executive branch retains the authority to
decide what information, if any, to declassify. The legislation merely
gives Congress the ability to serve its constitutionally-assigned
oversight function. Lawmakers also should insist that the president
share with Congress any legal analyses underpinning the PEADs. Among
other things, such disclosure would enable Congress to correct, through
legislation, any executive branch misinterpretations of statutory law.
---------------------------------------------------------------------------
\156\ S. 4279, 116th Cong. (2020).
---------------------------------------------------------------------------
* * *
Congress has enacted a range of extraordinary authorities designed
to enhance the president's powers in cases of sudden, unexpected
crises. The greater the powers, however, the greater the need for
robust oversight and safeguards against abuse. Congress enacted the
National Emergencies Act and IEEPA to put such checks in place, but
they have failed to serve that function. Another statutory emergency
authority, the Insurrection Act, is devoid of the safeguards that such
a potent authority demands. And presidents increasingly lay claim--in
secret--to inherent constitutional powers that threaten to render
statutory limitations moot.
It is time for Congress to revisit the legal framework governing
presidential emergency powers, with an eye toward restoring its own
role as a check against executive overreach. My testimony today has
described some common-sense reforms that would provide the president
with the flexibility he needs in a crisis, while simultaneously
ensuring that these extraordinary powers cannot be used to subvert
democracy and guarding against the corrosive phenomenon of ``permanent
emergencies.''
Thank you again for this opportunity to testify.
Mr. Perry. Thank you. The Chair thanks you all for your
testimony.
We will now be turning to questions. The Chair recognizes
himself for 5 minutes for questions.
Before we get into the specifics of potential reforms to
the NEA, I just wanted to make sure we all understand the
magnitude of what we are talking about today.
The President has--what did you say, Ms. Goitein, 130----
Ms. Goitein [correcting]. 135.
Mr. Perry [continuing]. 135 emergency powers scattered
throughout the code.
I will start with you, Mr. Dayton. Can each of you just
tell the subcommittee, in your opinion, what are the top two or
three emergency authorities granted to the President that might
concern you?
Mr. Dayton. Well, I think the ones you mentioned initially.
The involuntary testing of chemical and biological weapons on
American people. And I would say, in today's environment, the
internet issue that Ms. Goitein mentioned, given that the
internet is central to everything we do and everything in our
homes and things like that.
Mr. Thallam. Yes. Oh, I am sorry.
Mr. Perry. Go ahead.
Mr. Thallam. I think you can't answer this question without
referencing the same one, the communications, the ability to
shut down.
I think, also, there is language kind of scattered
throughout that allows the President to reappropriate funds
from a congressionally appropriated account into another
through declaration of emergency. So, that is not a specific
one, but it is kind of a general one that I would be concerned
about.
Ms. Goitein. I would add to that list the International
Emergency Economic Powers Act, which allows the President to
essentially freeze Americans' assets without judicial process.
I do think that particular law requires its own solution, a
separate solution, from some of the other powers, and we can
maybe talk about that later.
But I would then add again to the list the power that is
given to the director of the Transportation Security
Administration to control domestic transportation.
And then, I am just going to throw in one more, which is
the President's ability to detail members of the U.S. Armed
Forces to any nation of his choosing.
Mr. Perry. Yes. I noticed that. I noticed the nexus in all
these powers between the military and the emergency itself, and
many emergencies--I would argue most don't have anything to do
with the military at all. And that one in particular--I read
that--detail to other countries.
We might have--does any--I am kind of going off my own
script here, but that's OK.
Does every single emergency invoke all of the powers across
the spectrum for the duration of the emergency? So, as long as
one emergency exists, the President has the 135 now powers even
though they might be unrelated to the emergency at hand? Is
that correct?
Ms. Goitein. That is true for most of them. The National
Emergencies Act itself does not include any requirement that
the powers invoked relate to the nature of the emergency.
Some of the emergency powers, the individual powers, have
additional requirements in them, circumstances that have to be
met. Most of them do not. So, dozens of emergency powers are
available to the President, regardless of whether they relate
to the nature of the emergency.
Mr. Perry. So comforting.
Ms. Goitein, as long as I'm with you, I understand from
your testimony that of the 76 national emergencies that have
been declared, 41 are still active. Yet accordingly, the
required expenditure reports have not been submitted for more
than 20 years.
Is there any way of knowing whether they have even been
completed? And where are they supposed to be going? Who is
supposed to get them?
Ms. Goitein. Let me give you a little more detail on that.
The emergency declarations that rely solely on IEEPA, the
International Emergency Economic Powers Act, reports for those
declarations have been submitted. For the other non-IEEPA
emergency declarations, we have been unable to find reports for
almost any of those other emergencies. There was a report filed
for the Katrina emergency, but we have been unable to find
other ones.
And when the IEEPA reports are filed, there is a notation
in the Congressional Record so you can see it has been filed,
and you can't find that notation for other emergencies.
With respect to the 9/11 emergency, in particular, we have
done some digging, speaking to staffers, committees, where they
really should be getting these reports, and they appear to be
not getting them. There was also a reporter who filed a FOIA
request, we filed one as well, several years ago for the
reports for the 9/11 emergency declaration going all the way
back to 2001, and the Department of Defense--which has been
delegated the authority to submit those reports for the 9/11
emergency declaration--basically told the reporter that the
reports don't exist.
Mr. Perry. I am sorry. Say that last part?
Ms. Goitein. Told the reporter that they were unable to
find them and that they had performed a search thorough enough
that if the reports existed, they would have found them.
Mr. Perry. Also comforting. All right. My time has expired.
The Chair now recognizes the gentlelady from Nevada, Ms.
Titus.
Ms. Titus. Thank you.
You mentioned a solution is for Congress to exert its
authority to end an emergency without it going to the President
or needing his buy off on it, his signature.
How does the suggestion you made at the end of your talk,
Ms. Goitein, get around the Chadha legislative veto decision?
Ms. Goitein. I am happy to weigh in, and other witnesses
might want to as well.
Ms. Titus. It doesn't matter who. Just you mentioned that
solution. That's why----
Ms. Goitein [interrupting]. Yes. No, I am happy to explain.
The way that it works is that the--it requires the
emergency declaration or provides that the emergency
declaration expires automatically after 30 days. And so, if
nothing happens, it expires. It doesn't expire because there
has been a legislative veto, it expires because Congress said
this can last for 30 days.
However, Congress can vote to extend it. And, of course,
that is a legitimate act of Congress, one that the President is
clearly going to sign because it is the President's emergency
declaration, and that then becomes an act of Congress that
extends the emergency.
Ms. Titus. Mr. Dayton, do you want to answer that?
Mr. Dayton. Yes. Just to extend slightly.
The core concern in Chadha is that you have bicameralism
and presentment. And what this does is, by having the joint
resolution and then the signature, you satisfy the core
requirements of Chadha, and it becomes just like any other law.
So, it is fairly straightforward in that sense.
And this has been discussed, as I note in my written
testimony, since the 1980s. Immediately after, within a year,
then-Senator Biden wrote a piece on this in a law review essay.
And there was a fair amount of discussion at the time.
I think they hadn't worked out the procedural details,
unfortunately, and so, there were a series of amendments to a
number of statutes--not just the National Emergencies Act--that
were impacted by this that just changed the requirement to a
joint resolution without the sunset.
Ms. Titus. I don't think it has been challenged, but some
people would argue that the War Powers Act is unconstitutional
based on Chadha. Is that right?
Mr. Dayton. Well, the War Powers Resolution has a couple of
additional complications. There are some scholars who have
argued that Chadha doesn't apply. I don't think that would
probably stand scrutiny.
And there has been--when the War Powers Resolution was
passed in 1973, President Nixon and every President since then
has suggested that their compliance with it does not suggest
that they think it is legal.
And furthermore, the Senate made changes to the War Powers
Resolution, and the House did not. So, there have been two
resolutions this Congress, introduced by Mr. Gaetz from
Florida, and I think Chairman Perry and, I think, Mr. Huffman
voted for those resolutions.
But those actually don't trigger the same processes in the
Senate because the Senate procedures were changed but not the
House ones. So, it is a complicated mess. And as you move
through each set of authorities that use these kinds of
procedures, in some cases they were changed; in some cases they
weren't. I go through a couple of those in my written
testimony.
But it is a complicated mess that is inviting a solution.
And I think this is a great opportunity for Congress to sort of
reclaim that broader settlement from the 1970s that we saw over
a large number of issues and really use this opportunity for
bipartisan consensus to get a real win for Congress.
Ms. Titus. So, would it make sense for us to do a study of
all these emergency powers that exist out there and try to
bring some standardization to them?
You mentioned the 30-day limitation. What about the number
of times it can be renewed, for example? But does that then
kind of run contrary to the fact that an emergency is something
special and unusual and you need to deal with it on a one-off
basis as opposed to something standard that goes across all
these?
Mr. Thallam. If I may.
I mean, I think that is worthy of consideration. I mean,
that is what this body is here for, is to deliberate. I mean,
there is no way to create a perfect rubric under which every
future emergency will fit.
So, the tension is to make it broad enough that it is
applicable when it needs to be applied, but not so broad that
it is just limitless and that Congress has basically kind of
surrendered, in saying, well, in an emergency, it is up to the
President, and then our hands are washed of the whole thing.
Ms. Goitein. If I could add to that.
An emergency is supposed to be a short-term event. If it
lasts for longer than a certain amount of time, it is a new
normal, and the way to address it is not through a permanent
state of emergency, but through new permanent laws, if
necessary, if it becomes a new normal.
The reform that we have been talking about is included in
several bills that have been introduced by lawmakers on both
sides of the aisle. Some of those bills actually do include a
5-year cap on the total length of time that any emergency
declaration can stay in place. I think that is a good provision
and one that I think this committee should consider.
Ms. Titus. Thank you.
Thank you, Mr. Chairman.
Mr. Perry. The Chair thanks the gentlelady.
The Chair now recognizes the gentleman, Representative Van
Orden.
Mr. Van Orden. Mr. Chairman, thank you very much. And I
want to thank you so much for coming here today. This is an
incredibly important subject. It is phenomenal that you are
putting this on.
I wrote an op-ed in April 2020. I revisited it in March of
2021. It is May of 2023 now, and I would just like to share
this with you, if you don't mind. It is called ``Freedom Over
Fear'' 1 year on, this one, because those two things cannot
exist in the same universe. You are either free or you live in
fear. And, again, this was written in March of 2021.
Our Nation is over a year into the COVID lockdowns. What is
becoming more apparent every day is that nearly every draconian
measure taken by the predominantly Democrat-controlled States
and municipalities have not only become counterproductive, but
are actually detrimental.
What started as a response to a public emergency morphed
into a classic Government overreach and devolved into a series
of arbitrary and capricious edicts pronounced by petty tyrants
who reveled in their newfound personal political power.
Two weeks to flatten the curve. Six months. Now 3 years.
Now 3-feet social distancing. Then 6. Wear a mask. Now two.
Total lockdowns. Now open, no lockdowns. You can't dine in a
restaurant, but you can eat in an enclosed plastic bubble on a
sidewalk in front of the restaurant. You can dine in, but you
have to wear a mask at the table and take it off when you sit
down and when you go to the bathroom because COVID only exists
in an aisle.
Get vaccinated, but you still can't move about freely or be
with your family. You must tell people whether or not you are
vaccinated. If you say something on ubiquitous social media not
in line with the State, you are disappeared by neofascists
pretending to be antifascists who zealously ban books and you.
Having the audacity to say that someone's job that is putting
food on the table for their family is not essential.
By ordering the physical separation of family members and
threatening fines and imprisonment for holding church services
or other public gatherings, closing schools, and locking our
children in their homes, the Government has isolated American
citizens and removed the most powerful support mechanisms
possible: Faith, family, and friends.
This is by design and is wholly un-American. These measures
are clear indications that the COVID pandemic has been
weaponized by unscrupulous politicians who have been able to
terrify many well-meaning citizens into becoming their
enforcers.
This is why the Nation went off the rails. During times of
crisis, men and women of faith returned to their eternal sacred
text to find comfort, guidance, and peace. And in secular life,
we should have returned to our foundational documents--the
Declaration of Independence, the Constitution, and ``The
Federalist Papers''--for the very same reasons. This did not
happen. We are now seeing and we have seen the second- and
third-order effects of these gross omissions, and they are
horrible.
As I said, I penned an op-ed in 2020 centered on the seven
words from the Declaration of Independence: Life, liberty, and
the pursuit of happiness. The basic thesis being that
yesterday, today, and tomorrow--war, depression, virus or not--
the meaning of those words do not change. And I paraphrased
Hamilton saying that we must either stand for something or we
will fall for anything. And that is exactly what our Nation
did. I stand by these statements.
The farther we got down the road of creating the dystopian
new normal, the more people will come to realize that they did
not sell their constitutional freedoms. They willingly gave
them away to a series of faceless bureaucrats and politicians
who became drunk on power.
It is my sincere hope that my fellow Americans wake up and
realize that our Government cannot remove the rights that were
endowed by our creator and once again start living their lives
as free men and women. The time to do so is growing short.
History will show that the legislative response to SARS
COVID-19 is a combination of a series of the worst public
policy blunders and the largest excuse for a political power
grab in the history of the world. We must hold our elected
officials who champion these policies to account and get them
as far away from the place of power and influence as possible.
We either believe that our rights are granted by God, and
are simply articulated in the Constitution--meaning that they
are immutable--or we do not. Because if we believe that we can
take a pause on our constitutional rights, they are, by
definition, not immutable, which makes them arbitrary and
capricious. Those are not the values that our country was
founded on. They are not.
I believe that our Constitution must be respected for what
it is, and that is the foundational document that this Nation,
the greatest Nation that has ever existed in the history of the
world, must be respected as such.
So, I want to thank the three of you very much.
And, Mr. Chairman, I want to thank you for holding this
committee meeting. I think it is possibly the most powerful
thing we can do as Members of Congress. And with that, I yield
back.
Mr. Perry. The Chair thanks the gentleman.
The Chair now recognizes the ranking member of the full
committee, Mr. Larsen.
Mr. Larsen of Washington. Thanks.
On December 20, 2020, I got COVID and was released from
isolation 10 days later. The same day, my neighbor got COVID,
and he was dead 6 days later. COVID is the most random killer
that I have lived with in 57 years. And we took actions to
prevent those deaths and prevented hundreds of thousands of
deaths, and yet, many people still died.
I think there is a reason for the National Emergencies Act.
I think there are reasons why elected officials acted out of
good faith, given the knowledge we had and the science we knew
at the time, and that science changed as we got to know more
about COVID and its variants. I think we just need to look at
this practically.
And from what I gather--is it Thallam or Tallam?
Mr. Thallam. Thallam.
Mr. Larsen of Washington. OK. Thanks. You don't have to
correct me.
[Laughter].
You mentioned rubrics; which powers, timelines of review of
length of emergency, congressional actions we can take, and
then, international powers with the IEEPA versus domestic.
Those are kind of four categories of things that we can kind of
come to a conclusion on. So, maybe there is a start for me.
I see nodding heads, for the record, that at least I have
got four of some number in the rubric to make some decisions
on.
But, Mr. Dayton, on congressional action, you kind of
walked up to the line, and I just want to know, were you
arguing we should try to create a constitutionally valid
legislative veto?
Mr. Dayton. I am sorry. Can you say that again?
Mr. Larsen of Washington. You seemed to walk up to the line
on legislative veto.
Are you arguing we should try to create a constitutionally
valid legislative veto?
Mr. Dayton. I think with a sunset system, you can create
something pretty similar. It doesn't--in the bills that Mr.
Thallam and Ms. Goitein mentioned, they are typically a 1-year
extension, and under the original NEA, it could have been cut
off after 6 months.
And so, there is a design question about how you would do
that. And in a certain sense, you could cut off at any time.
So, there are still some really challenging issues.
One is--and to use the COVID example--in the COVID
emergency, the emergency that was declared by President Trump,
and subsequently renewed by President Biden, the only authority
it actually claimed specifically was a waiver of Medicaid
eligibility.
Mr. Larsen of Washington. Right.
Mr. Dayton. And so, I think it would be very helpful to
also make more explicit the powers that are to be used. Some of
that language is in the original NEA. But it has got some
language about subsequent Executive orders.
Mr. Larsen of Washington. I need to ask another question on
that.
Does the CRA, Congressional Review Act, is that a
reasonable replacement, using the CRA? Which we have been
using, but I just wonder if that is a reasonable replacement.
Mr. Dayton. So, the CRA still has the Presidential veto
issue, right?
Mr. Larsen of Washington. Right.
Mr. Dayton. And so, I think if you were to create something
similar to the original desire of the NEA that is compliant
with Chadha, you would need the sunset process and the
expiration process, and the CRA doesn't have that.
Mr. Thallam. Yes. Just let me say that the proposals that
have been mentioned, by default, create a sunset for any
declared emergency. So, that is in statute. That is in a
normally, duly presented statute.
So, what Congress is voting on is only to extend, not to
veto. It is sort of vetoed by default after a certain number of
days. That is one way of thinking of it.
Mr. Larsen of Washington. Yes.
Ms. Goitein. And I was going to say something similar,
which is, Congress puts sunsets on Presidential authorities all
the time. That is not constitutionally questionable. So, that
is all this is. It is a sunset on the President's authority.
And then if Congress wants to extend that authority, it does so
through a law that the President signs, so there is no Chadha
problem there either. So, it is constitutionally quite sound,
this mechanism.
Mr. Larsen of Washington. Yes. Yes. And the constitutional
soundness is important. The Founders argued legislative vetoes
and made a choice not to include it for whatever reason, and we
are sort of hanging our hat on that and stuck with it, I guess,
which is fine. I think legislative vetoes are unconstitutional,
in my view.
On the international versus domestic--and I noted that
most--in the Brennan Center for Justice--in your document, most
of these emergencies are probably foreign policy/international-
related as opposed to domestic-related. Is that relatively
accurate?
Ms. Goitein. I would say it is about half and half----
Mr. Larsen of Washington [interposing]. Is that right?
Ms. Goitein [continuing]. Actually. Yes, I think so.
Mr. Larsen of Washington. Yes. So, as a review--sorry. I
will just--quickly.
Would review be here, or should that be in the Foreign
Affairs Committee? Have you thought through the wonderful
jurisdictional fights that we would have to----
Ms. Goitein [interrupting]. It is such a good question. I
think the National Emergencies Act, as a statute, spans the
jurisdiction of almost every committee. In the House, the
jurisdiction over NEA has been given to the Transportation and
Infrastructure Committee.
I do think, if you bite off a very significant authority
that is in another committee's jurisdiction, you start to run
into problems, and that is one of the issues with IEEPA. It is
one of the reasons I feel like IEEPA--there are many reasons
why I feel like IEEPA is its own beast and needs to be dealt
with separately.
Mr. Larsen of Washington. In conclusion, I think this is
one issue that I think if we bit it off, most committees would
say, thank God, right? Most committees would say thank you for
taking this because no one wants it. All right.
Mr. Perry. The Chair thanks the gentleman.
The Chair now recognizes Representative Ezell.
Mr. Ezell. Thank you, Mr. Chairman.
And I want to thank each and every one of you today for
being here and sharing this information with us because I think
it is going to be very good for all of us.
I spent 42 years in police service as a police chief, a
sheriff, and many other leadership roles, and during--where I
live on the Mississippi gulf coast--Hurricane Katrina, I had 4
feet of mud and water in my house, and so did just about the
entire town that I live in.
And one of the things that, as a sheriff or police chief,
is that I was always--we knew these storms were coming, and we
had some emergency preparedness, and I was given--as chief or
sheriff, I had some authorities kind of along the lines that we
are talking about here today. But just as soon as things
cleared up, we went back to normal operations. And so, I think
this is very good.
And one of the things that I would like to say today is
that after every major storm or event, as the sheriff or police
chief, we had reports that we had to do. They were mandatory to
do. And to hear that our Government can't even find a report
is--I guess I should be shocked, but in the short few months
that I have been here, I am not.
So, I think that is something that should be a mechanism
that would be required from any agency head, or any department
in this Government. But if we do a study on this, can we also
put a timeline on this study as to how we can better, as
Congress, do our job so that we can get some good policy and
procedure in place?
Are there some areas of disagreement that are out there
that we could work on that any of you could discuss today?
Mr. Thallam. I am tempted to say no just so we can all be
friends and move on.
I mean, those--I think Congressman Larsen was repeating
this idea of kind of the buckets of questions we have to
address. What is an appropriate time limit? What is an
appropriate scope? There is very reasonable disagreement within
those. Is 30 days too short? Should an emergency be considered
something that lasts for 6 months?
I would like to point out something I wrote, included in my
written testimony. It is useful to think of Congress' role
under reformed NEA as not just the President pulling this way,
Congress pulling this way, and Congress ultimately having its
say because Congress is the lawmaking branch, but Congress
having its say also provides political legitimacy, right?
So, if an emergency is, in fact, self-evident, and we are
all kind of viewing it and it really constitutes an emergency,
having Congress be able to say yes or no to extend it actually
bolsters the case that, yes, this is a thing that needs to be--
there is a flood, there is a hurricane. This is something that
needs to be responded to, and maybe after 30 days, it hasn't
been totally addressed before going back to, as you said, kind
of normal operating procedures.
Ms. Goitein. If I could add, I have never worked on an
issue that had this much agreement. An agreement on both sides
of the aisle. And when--the first bill that was introduced that
included this 30-day termination reform was the ARTICLE ONE
Act, and that was a bill offered by Senator Mike Lee with 18
Republican cosponsors. But every Democrat in the Senate
Homeland Security and Governmental Affairs Committee voted for
it, and several Democrats joined a letter to leadership asking
for it to come to the floor.
And as of last year, I think there were 30 Democrats in the
Senate and 20 Republicans who had sponsored or cosponsored some
version of that reform. So, there is really widespread
agreement.
I think the one aspect that was controversial in the
original bill was that the original bill did cover IEEPA, and
there was an amendment in the committee to strip it, and that
amendment was widely supported. Other than that, I think there
has been extremely little substantive disagreement as
variations of this bill--this bill was then picked up and put
into certain Democratic and bipartisan reform packages, again,
with very broad support.
Mr. Ezell. I think this is something we might get done in a
timely manner.
So, with that, Mr. Chairman, I yield back.
Mr. Perry. The Chair thanks the gentleman.
The Chair now recognizes the gentlelady, Ms. Holmes Norton.
Ms. Norton. Thank you, Mr. Chairman. This is an
enlightening and sometimes frightening hearing.
Ms. Goitein and Mr. Dayton, the President controls the
District of Columbia National Guard, while the Governors of the
States and Territories control their National Guards.
Do you think Congress should pass legislation to give the
DC mayor control of the DC National Guard, and if so, why?
Ms. Goitein. I would be happy to answer that question.
The answer is yes. It is not only the States in this
country, but also the Territories where there is local control
over the National Guard: Puerto Rico, Guam. The only exception
is Washington, DC.
What this creates is, first of all, a situation in which
where there is an emergency that threatens the residents of DC,
the mayor has to go through a bureaucratic process to get
Federal approval to deploy troops, and we saw the effect of
that on January 6.
But the other problem is that the Department of Justice has
adopted a sort of legal fiction in which the DC National Guard
can operate in non-Federal status even though at all times, it
is under the command and control of the President. And for that
reason, it is not subject to the Posse Comitatus Act.
That means that the President can deploy the DC National
Guard to act as a domestic police force pretty much at will.
And that is a tremendous problem. It is another problem that
could be fixed by having the mayor assume command and control
over the DC National Guard.
Mr. Dayton. And I share Ms. Goitein's concerns.
I would add that the DC National Guard was actually created
in 1802 by President Jefferson to provide security for the
White House, which is a natural need. We now have the Marine
Barracks, right? The Marines are all over the White House and
provide that function.
So, at least the original understanding of what the DC
Guard was for and why it reported to a Federal entity just
doesn't make sense anymore. You can all go over to 8th and G
Southeast and see the National Guard Barracks.
So, it seems like that is a place where you just could
clean up and treat DC like other Territories and still have the
full power of the President to use, to federalize guards from
any State to provide core services.
So, I don't think you run into problems in that way. And
frankly, if there are problems in DC that might need
mobilization of resources that--I don't see why the President--
why it should flow through the White House. That doesn't make
sense.
Ms. Goitein. And to quickly elaborate on what Mr. Dayton
said, the reason why Congress gave command and control to the
President was not some considered judgment about who was better
suited, the DC mayor or the President. It was that there was no
DC mayor. When that assignment occurred, there was no local DC
government and no DC mayor. The President was the only game in
town. So, this is an archaic artifact of history, and it should
be updated and changed.
Ms. Norton. Well, thank you.
Ms. Goitein, your testimony highlights a number of really
shockingly authoritarian powers enabled by national
declarations: assuming control over the U.S.-based internet
traffic during war times, suspending the prohibition on
Government testing of chemical and biological agents on
unwitting human subjects. Most of the reforms we discussed here
today are geared toward facilitating or expediting the
termination of emergencies.
Do you believe there is merit in imposing certain
substantive limits on emergency powers in accordance with basic
human rights principles?
Ms. Goitein. Absolutely. And I think the reform we have
been talking about, the congressional approval requirement, is
something that can be done immediately. It gives you the most
bang for your buck, because it curtails the abuse potential in
more than 100 different statutes.
But I do believe Congress should also review some of these
individual emergency powers that are available under the NEA,
and in some cases, absolutely impose some--establish some new
parameters that will ensure that these powers are used
consistently with principles of democracy and liberty.
Ms. Norton. Mr. Dayton, the National Emergencies Act
requires the President to disclose which authorities they
intend to use when declaring national emergencies and a
national emergency.
Mr. Dayton, have Presidents complied with this requirement?
Mr. Dayton. Not always, and it has been complicated. To use
the COVID emergency as an example, I mentioned earlier that the
emergency declaration only mentioned Medicaid waivers. However,
the deferment of student loan payments was announced by press
release by the Department of Education in late March of 2020,
early April, and there was no legal authority provided until
January of 2021.
Was that legal? Facially, it is plausible. It certainly
wasn't--there wasn't a political outcry to stop it. In fact,
Congress actually included some of those provisions or included
similar actions. But I think this is an area where we need a
healthier system, where the President is being very clear about
what authorities they want to use, and if they want to use new
authorities, maybe amend the declaration and get a subsequent
confirmatory action by Congress.
But I think you could set up something that increases the
accountability, and frankly, as Mr. Thallam said, gives
political cover to everyone. I think it would have made--if
there had been more of a political conversation at a higher
level earlier, we might have addressed some of the concerns
that came up in court at a later date.
Mr. Perry. The gentlelady's time has expired.
The Chair now recognizes Representative Carter.
Mr. Carter of Louisiana. Thank you, Mr. Chairman.
Mr. Thallam, how might the invocation of congressional
approval or disapproval on the disaster declaration undermine
efforts of State and local government in aiding recovery?
Mr. Thallam. Thank you. I think--well, again, I mean, this
is part of the consideration for how do we scope, what is the
appropriate scope for this National Emergencies Act potential
reform. The idea is that it is policy neutral. And I think the
question you are asking goes more to the specific authorities
that are unlocked, right. So, there is the declaration of an
emergency, but those don't actually directly grant any
authorities; other statutes do, where they say here is how FEMA
will respond in a natural disaster emergency or so on.
So, I think that is where you want to look if you feel that
there is a deficiency or there is an opportunity for, I think a
word the chairman used was ``chicanery'' in another context. If
there is a missing piece there, that other statute, I think, is
the appropriate place to look.
Mr. Carter of Louisiana. So, you agree we should be careful
in watching that because there is room for chicanery or
whatever the----
Mr. Thallam [interrupting]. Well, yes, and I think all of
three of us----
Mr. Carter of Louisiana [interrupting]. Obviously, making
sure that we don't have the ability to slow or damage the
recovery efforts. Obviously, in legislative bodies we use this
term all the time, ``unintended consequences,'' and so, we
should be mindful that in our effort to do something good, we
don't end up doing something that could be detrimental.
Mr. Thallam. Yes, and--I am sorry.
Mr. Carter of Louisiana. It looks like you have a comment.
Ms. Goitein. Well, I was just going to say, reforming the
National Emergencies Act in the way that we talked about would
not have any effect on the Stafford Act, which is the primary
source of authority for dealing with these kinds of on-the-
ground emergencies, natural disasters, that sort of thing, nor
would it affect the Public Health Service Act, which is the
primary source of authority for dealing with pandemics.
And most of the authority, certainly to deal with COVID,
for example, was exercised at the State level, through State
laws and State constitutional authorities that also would not
be affected by NEA reform. So, I don't think there is too much
of a concern that reforming the National Emergencies Act would
tread on either the resources or authorities available to State
and local governments in emergencies.
Mr. Carter of Louisiana. There may not be a more vulnerable
stretch of America to natural disasters than the gulf coast. In
my district, and in the surrounding areas of southeast
Louisiana, people have been preparing for and rebuilding from
storms since long before I have been alive. I was born in the
wake of Hurricane Betsy. I have lived through Katrina, and
served my community in our time of need.
And I was elected to Congress just in time to help lead the
disaster recovery after the devastation of Ida with our
Governor and my colleagues in the Louisiana delegation. After
Hurricane Ida, we all stood together. I know disasters. I have
lived with them my entire life.
I was born knowing to always have canned goods, water,
extra batteries, and supplies because this is something that we
know comes. We don't know how fast, we don't know how long, but
we know they are coming, and we know they tend to come faster
and stronger, and we know that they don't discriminate against
party, race, color, or socioeconomic backgrounds. So, we know
the significance of the NEA.
If the NEA is amended, do you believe that the Stafford Act
should also be considered for amendment?
Ms. Goitein. I do not think that the Stafford Act raises
the same concerns, or necessarily requires the same approach,
and I say that because the Stafford Act is much more limited in
its definition of what an emergency or a major disaster is. And
it doesn't generally provide a lot of open-ended authorities;
rather, it just frees up resources for State and local
government. So, I think it just presents a whole different set
of considerations, and I would not advocate taking the same
approach.
Mr. Carter of Louisiana. And I am not suggesting the same
approach, but my question is, do you believe that the Stafford
Act should be reviewed as well as a document that may have
lived out its usefulness and perhaps needs to review in a 2023
scope?
Ms. Goitein. I am not sure that I have the necessary
expertise to answer that question.
Mr. Carter of Louisiana. That's fair.
Ms. Goitein. The concerns that I have are concerns about
separation of powers and civil liberties. I, at this point,
have not seen those concerns raised in the Stafford Act
context. Whether it contains the----
Mr. Carter of Louisiana [interrupting]. That is fair. I
have got 5 seconds. Do either of you see a necessity or a, from
your vantage point, and I understand that may be above your pay
grade or in an area that you are not necessarily zeroed in on,
but the Stafford Act, as we look at possibly modifying the NEA,
do you think we should, likewise, look at modifications to
Stafford, not necessarily in the same frame, but because of the
vintage of----
Mr. Thallam [interrupting]. Not necessarily in the same
frame, but, yes, I think exactly. I actually worked in the
Senate Homeland Security Committee, so, I think it is outside
the scope of my role here, but there is always room for
improvement, and there is always unintended consequences, as
you say, in how things sort of develop over time and they
always merit review and additional consideration.
Mr. Dayton. First----
Mr. Carter of Louisiana [interrupting]. Very quickly, my
time is up, so--
Mr. Dayton [continuing]. My wife's family is from Baton
Rouge, so, I understand what you all had to go through in
Louisiana. Second, I believe the Stafford Act has been looked
at a number of times. It is not like the NEA, which is
essentially one and done in 1976. It was never touched again
except to change the word ``concurrent'' to ``joint.''
I think every couple of years there has been some going
back and tweaking the Stafford Act, because there are a lot of
hurricanes and a lot of tornadoes that people need to respond
to, and we learn things.
So, I think there is probably less of a fundamental
problem, and I don't think the need for congressional review in
the same way is necessary, because it is really about unlocking
funds and, as I believe Mr. Ezell said, that there has been a
good deal of reporting out of FEMA, unlike in this case.
Mr. Perry. The gentleman's time has expired.
The Chair now recognizes Representative Huffman.
Mr. Huffman. Thank you, Mr. Chairman.
And I want to thank the witnesses, all of the witnesses.
Your testimony has given us a lot of food for thought and has
been excellent.
Clearly, Congress needs to engage and bring some scrutiny
to these open-ended emergency authorities. It is long overdue
that we do that. But I think anyone who is following this
hearing probably also understands that we are going to be
challenged to do that. We just heard a member of this committee
suggest that the temporary emergency authorities invoked in
response to a global pandemic that killed over 1 million
Americans, temporary authorities that have now expired, that
that was literally the worst abuse of authority in the history
of the world. We heard that in this conversation here today.
Hitler is rolling in his grave because here's been rendered a
footnote in history eclipsed by the evil Dr. Fauci who dared to
save millions of lives potentially.
So, we have got a credibility problem as we weighed into
this difficult issue, and that is going to challenge us. This
can be a little bit of a Rorschach test looking through
partisan lenses at which authorities we think are being abused,
or maybe which authorities we think should be invoked. So, that
contributes to our challenge as well.
Ms. Goitein, we have heard about the incredible scope of
some of these authorities, that should give us all pause, the
ability to cut off wire communications such as cellular
internet capabilities, shut down domestic transportation,
deploy troops, even perform biological or chemical testing on
humans. So many things about this subject matter should give us
all pause, but one thing you pointed out in your testimony I
think is also a bit shocking, that the only limitation on a
President to execute many of these powers is precedent and
political norms, a sense of decency, if you will.
And we saw from the previous administration the limits of
relying on that. We saw attacking peaceful protesters at
Farragut Square, inciting an insurrection. Now, the chairman
may not be troubled by that abuse of authority because he was
very much in cahoots with the President and reportedly had to
seek a pardon for his role in that illegal scheme to overturn
the election.
But, Ms. Goitein, can you go into a little more detail on
the vulnerability we have when we rely on norms and a sense of
decency as the backstop to the abuse of authority.
Ms. Goitein. The Framers set up the Constitution the way
they did with checks and balances, precisely because they knew
that we could not rely on any President of any party to
restrain himself or herself. Probably the Framers weren't
thinking ``herself,'' but you get my point. And checks and
balances are not an optional feature of the Constitution that
can be toggled on or off depending on who occupies the White
House.
It is a core protection for our democracy, as I said
earlier, and it was because the Framers knew that eventually
the temptation to abuse power, to consolidate power, to get
around Congress, whatever it might be, would be too great. We
shouldn't be surprised that we have seen that borne out. That
is why checks and balances are there.
And in the context of the National Emergencies Act, right
now they are not working. And so, the idea is to find a way
through law, not through norms, not through expectations of
self-restraint, to shore them up, to prevent that from
happening. And if you wait until a President you don't like is
in the White House to try to do that, by definition it will be
too late. The time to do it is now as a systemic protection for
our democracy, not as a partisan measure directed against any
particular President.
Mr. Huffman. Very well said. And are there some authorities
that Congress could use right now without a new act of
Congress, some checks that maybe Congress has hesitated to
utilize in the past?
Ms. Goitein. Well, I do worry that when President Trump
declared a national emergency to secure funding for a border
wall, he did break a certain norm of self-restraint in terms of
using emergency powers to put in place long-term policy
preferences that Congress didn't support. I believe President
Biden accepted that invitation when he used emergency powers to
forgive student loan debt.
So, I think we have now broken the seal. We have seen it
done by Presidents with both parties. I do expect to see that
in the future, that softer form of abuse that I was mentioning
earlier. And as we have discussed, any of the powers, almost
all of the powers that exist for the President to use in a
national emergency, can be used under any emergency
declaration, and we have 41 of them in place.
So, really, right now, we are highly, highly dependent on
norms of self-restraint, and those norms have been badly
shaken.
Mr. Huffman. All right. Thank you. Yield back.
Mr. Perry. The gentleman's time has expired.
The Chair now wishes happy birthday to the gentleman from
Tennessee, and recognizes Mr. Cohen for 5 minutes of questions.
Mr. Cohen. Thank you for the greetings. Appreciate it. 74
and some more. And thank you for the recognition.
I waived on to this subcommittee because I have had this
issue as one of mine when I was the chair of the Constitution,
Civil Rights, and Civil Liberties Subcommittee for the last
three general assemblies, I think, or three legislative
sessions--2019 to 2022--we had hearings on these issues. And we
found out that the Transportation and Infrastructure Committee
was the proper committee, which makes no sense whatsoever. It
made no sense then, and it makes no sense now. Maybe that is
one of the reasons why we haven't gotten anywhere with it. Mr.
DeFazio didn't have any interest in pursuing it.
But it is in this committee. We had good hearings. Ms.
Goitein was a valuable witness on each occasion. Chip Roy and I
have worked together on it. Mr. Mike Johnson had some interest
in it as well. There was bipartisan interest in doing something
with this bill. We just didn't have--we were not the committee
of jurisdiction. So, I would hope that the chair would take
this up as an issue that can get passed.
Ms. Goitein, is there anything that--the bills that have
been introduced this year, and Chip Roy has one that I have
joined with him on, is that the best vehicle that you have seen
so far, and are there any changes that you would recommend or
adjustments to that bill?
Ms. Goitein. There have been so many versions that have
come together over the course of the last few years. But I
would say that there was a version of the legislation that was
the process of a long series of negotiations with all of the
relevant stakeholders that became an amendment to the omnibus
at the end of last year that basically had been through a
negotiation process and had the buy-in of pretty much all of
the relevant stakeholders.
Right now, that particular language isn't in any bill, but
that is largely because the bills that we have been talking
about, for the most part, have not yet been reintroduced,
right.
So, with the ARTICLE ONE Act, the Protecting Our Democracy
Act, the Congressional Power of the Purse Act, the National
Security Reforms and Accountability Act, all of these bills had
some version of the reform in them, but they had not yet been
reintroduced. So, unfortunately, I can't point you to an
existing bill that has the ideal language, but I expect we will
see one very, very soon.
Mr. Cohen. But the language that was in the final act last
year is something you would support?
Ms. Goitein. I would support all of them. I actually
believe that all of them are a substantial improvement over the
status quo, but I think it makes sense to go with a bill that
has been through a negotiation process and has the buy-in of
all the stakeholders.
Mr. Cohen. Thank you. Thank you. We will look at getting
that in legislative form and introducing it, Chip Roy to
cosponsor it, and Mr. Chairman, in particular, would be most
important.
This is an important area, and you are right, it should
happen when you have got a President who you like, or some
people don't like him. It goes both ways. But I introduced it
when Trump was President. I introduced it when Biden was
President. It is the issue. The President could get away with
all kinds of things that he shouldn't, and the Congress is
surrendering its power.
And I did the same thing with pardons. I had a bill for the
whole time that President Trump was in about pardons. I have
reentered it now. I don't care if it is Hunter Biden or if it
is Donald Trump, Jr. The President shouldn't be pardoned, and
his family members shouldn't be pardoned, campaign people, et
cetera, et cetera. It goes for either party. And I would hope
it would catch traction now and become law, because it is the
principle that's important, not the individual, because it
lives way after us. No matter how long we live, how many
birthdays we have, the law would go on, and that is what we
need to be looking at.
And either of you all have anything you would like to add
or a little cleanup?
Mr. Dayton. The one thing I would say is, I have been, as I
said in my oral testimony, inspired by how Congress has worked
together on this issue. And I haven't seen people fall away
when the parties switch. So, I know you had interest in this
issue during the Trump administration, and you still have
interest in the Biden administration. I know the initial bills
that I think we are working off of were introduced during the
Trump administration by Mike Lee and Chip Roy, right, people
who have unimpeachable, conservative credentials, and they have
continued to push on those issues. And so, I think we have seen
a lot of principled action. And I should say, Chairman Perry
joined Chip Roy's bill last Congress.
So, while this committee has not held hearings, and
partially because you did in the last couple of Congresses, I
hope we can see through to closing that process relatively
quickly.
Mr. Cohen. Thank you. And Joel McCleary was one of our
champions, and he put together a group, Mr. Chair, of about 40
folks one night for dinner to talk only about emergency powers.
He was a man that was involved in the Carter administration,
but he is very interested in this issue. And I think the former
leader from Missouri, Mr. Gephardt, was involved, so, there is
a groundwork of people out there interested in a bipartisan
fashion.
Mr. Goitein. And I just want to thank you----
Mr. Perry [interrupting]. The Chair thanks the gentleman--
oh.
Ms. Goitein [continuing]. Very, very quickly, I just wanted
to thank you for your leadership on this issue and for your
bipartisan approach. And there is clearly room for--there is a
lot of agreement in this hearing room on both sides of the
aisle, so, it is very promising.
Mr. Cohen. Yes, ma'am. I yield back.
Mr. Perry. The Chair thanks the gentleman.
The Chair recognizes the gentleman from California,
Representative Garamendi.
Mr. Garamendi. Mr. Perry, thank you. Thank you for holding
the hearing, necessary, and we need to continue this.
It appears as though when we deal with the national
emergencies, we are usually dealing with an issue that is red
hot at the time--student loans, pandemics, whatever--and then
we try to address the national emergency law based upon that
particular problem, and it becomes politically difficult.
So, Mr. Perry, given your tenure as chairman of this
subcommittee, if we could spend the next 18 months looking at
this issue and coming with a proposal that is not based upon
the most recent hot button emergency, which undoubtedly there
will be one, I don't know, forest fires and I don't know,
whatever, there will be some sort of a national emergency, and
just divorce ourselves from the current hot button emergency
and come with a specific set of proposals to amend the act
itself. And I would like to hear from each of the witnesses
what that would be, not associated with today's hot emergency,
but beyond. Mr. Dayton, what would you do?
Mr. Dayton. In my testimony, I list three components, and
there have been a couple more that have been discussed here:
One, automatic sunset after 30 days and after a year. That
would create the forcing function for Congress to act.
Mr. Garamendi. Short version. Assume that I know what a
sunset is. Keep going.
Mr. Dayton. Oh, so, the President would have--when the
President declares an emergency, it would only last for, say,
30 days----
Mr. Garamendi [interposing]. I understand.
Mr. Dayton [continuing]. Until Congress acts; two, the
expedited procedures to allow quick consideration by Congress,
right, these are by congressional rules; three, clear reporting
and factual declarations and justifications. And, frankly, I
think part of the reason the reporting hasn't happened is that
Congress hasn't acted. So, why send reports if Congress doesn't
care, is, I suspect, some of the insight in the administrations
going back 20 years.
And then fourth, I would make specific that the powers used
in the emergency are, one, related to the underlying emergency,
and if new powers are going to be added, it probably needs to
reopen the process.
Mr. Garamendi. Thank you.
Mr. Dayton. Thank you.
Mr. Garamendi. Thank you for the ideas.
Mr. Thallam.
Mr. Thallam. Yes, I think in our written testimonies there
are some. I think in the legislation that Congressman Cohen and
others have worked on. I would just note that directly to your
point, the original National Emergencies Act is policy neutral.
It does not speak to whether certain emergency declarations are
good or bad or politically fraught. It is policy neutral. It
was just rendered ineffective by a court case that the authors
didn't anticipate.
So, any proposal can keep the basic structure that does not
mention public health, does not mention forest fires, does not
mention anything. It is about a metastructure for how
emergencies are run, kind of like the Administrative
Procedure----
Mr. Garamendi [interrupting]. I got it. And your proposal
reform is what?
Mr. Thallam. I mean, it is along those lines, set a default
sunset of something like 30 to 60 days.
Mr. Garamendi. But you would agree with Mr. Dayton? I am
just hustling along here.
Mr. Thallam. Yes. I mean, I concur with my colleagues.
Mr. Garamendi. OK. Very good.
Ms. Goitein. I also concur. There is legislation that was
introduced in the last Congress and the Congress before that
really, I think, hits a lot of the important reforms that we
are talking about that Mr. Thallam and Mr. Dayton just
mentioned, and I think now is actually a very opportune time
because the COVID emergency has expired. We are in a situation
right now where I think calmer heads can prevail.
Mr. Garamendi. So, you would agree with the four points
that Mr. Dayton----
Ms. Goitein [interrupting]. I am sorry, I didn't hear that.
Mr. Garamendi. Do you agree with the four points that Mr.
Dayton laid out, or would you add to it?
Ms. Goitein. Yes, I do.
Mr. Garamendi. Would you add anything to it?
Ms. Goitein. I can't remember if you mentioned the 5-year
total limit. Again, some of the bills that have included this
core reform of congressional approval have also included a 5-
year total limit on how long any emergency declaration can stay
in place. I think that is a good idea.
Mr. Garamendi. So, an additional sunset.
Thank you. Mr. Perry, I am going to yield back in 8
seconds, but I think we need to work--I know we must work on
this.
Mr. Perry. Without a doubt.
Mr. Garamendi. And if we could keep it away from the
current issue of the day and look at the underlying law and
specific reforms to it, I think there is a need, and I think
there is an opportunity. Thank you for the hearing.
Mr. Perry. The Chair thanks the gentleman.
We are going to do a second round here, assuming the
witnesses are OK with that. I suspect that it might be a little
shorter than the first round, because, as you can see, people
have other things to do, not that interest has dropped off,
there is just a lot of competing interest.
And so, the Chair will recognize himself for some
questions. I want to get a little more granular. There has been
a lot of apt complaining, totally valid and some collaboration
here in discussion. But do you know, is there a definition, in
the current code, of an emergency?
Ms. Goitein. There isn't. That is----
Mr. Perry [interrupting]. So, do you propose--has there
been one proposed?
Ms. Goitein. I have proposed one myself. There isn't a
definition of national emergency included in the bills that
have been offered over the last few years to reform the
National Emergencies Act.
Mr. Perry. Why do you suppose that is, because it is too
intractable, that is the point of division between the left and
the right?
Ms. Goitein. Yes. Honestly, it is very, very hard to get
agreement on a definition because it is going to be perceived
as either too granular, too micromanaging, or not doing enough.
And so, to some degree I think--and rather than try different
versions and have them all sort of stripped out and rejected
and create this bad legislative history that suggests that no
one wants to define it, I think the consensus has been to move
in the direction of having these procedural checks rather than
try to get at this elusive definition.
Now, as I said, I did propose a definition in the testimony
that I gave in 2019 before the House Judiciary subcommittee. I
do think it is definable, but it is very, very hard to get
consensus on the definition.
Mr. Perry. Mr. Thallam, it seems like you might have some
thoughts on this.
Mr. Thallam. I just--at least on one aspect of a
definition. If you start going down the road of providing
categorical definitions, it is just--it is an impossible task.
I mean, you would have to anticipate an asteroid strike. You
would have to--so, there are the obvious things, the things
that have happened in the past, but you have to allow for
things that we just haven't conceived of.
So, I think that is another reason to think of the proper
way to address it as no matter what the emergency is, there is
a very clear timeline, it is very time limited, it ends by
default unless Congress speaks to it, and the President has to
be very explicit about, in that time period, here are the
powers that I am being--and you can still further reform those
other emergency powers, right, go through those statutes and
say, hey, those are not appropriate, or, those have been
abused, we need to pull those back.
Mr. Perry. So, while I agree with everything you have said,
each of you, and I know you are champing there, Mr. Dayton,
just to engage in a little bit of a colloquy here with you, it
seems to me like this is Congress, right. We work on
definitions in the law, and there has to be a beginning and an
end or somebody is--look, it is the avarice of mankind, right.
That is what we are trying to avoid here and rein in.
And so, to acknowledge that is to say, maybe we don't
provide a definition, but maybe--because of the issues so
stated, the reason so stated, but maybe it should be that if
the President is going to declare an emergency, that we require
the President to define exactly what the emergency is and why
it is an emergency, as opposed to defining it, because I do
think that there is an emergency at the border.
Now, it has been going on for a long time, which probably
wouldn't fit your definition, right. It is an emergency that
happens every day that Congress just can't seem to--and we
can't all seem to get it together and agree to something. But
it doesn't mean it is not an emergency problem that ebbs and
flows in the state of the emergency.
At the same time, I don't necessarily see student loan debt
as an emergency that has some kind of existential threat to our
country or the people that have the loan or the people that
it--so, I think maybe we are looking at it the wrong way, but I
don't think we can just disregard the emergency itself.
Before I go to you, Mr. Dayton, because I am going to run
out of time here, because I could spend probably all day here
on this, and I imagine you could, too. I have a lot of concern
and angst about the fact that there is no reporting, there is
no accountability, there is no record of the money spent, and
that is a phenomenal thing to me.
I can't even begin to fathom, and can any of you--has there
been any start to an accounting--like just a conglomeration of
the total number of dollars that have been spent on the
emergencies over time that we know of, not how they were spent,
just like, how much money was spent that we don't know where it
is? Has there been any attempt at even doing that? And I will
start with Mr. Dayton.
Mr. Dayton. I am not aware of one. I will say on the
reporting issue, if the President actually needed your vote to
confirm the emergency, I think you might get the reports,
right. I mean, I think we have seen in cases where powers of
sunset, I know there is a current debate about section 702
surveillance authorities that I am not taking a position one
way or the other, but all of a sudden when Congress is about to
vote on reauthorizing these authorities, Congress gets a lot of
material from the executive branch.
So, I think one thing you can do here is by putting
yourself in the driver's seat, by putting Congress in the
driver's seat saying, Mr. President, or Mrs. President, if you
don't send us this stuff we are not going to approve it, all of
a sudden I think you are going to get more compliance from the
executive branch.
And I think also going back, and this is also partially
response to Mr. Garamendi's point, that if you--there are going
to be different definitions of emergencies. And I think the
part of the purpose of this structure is to, one, make this a
political question that it properly is; and two, we need to ask
what purpose a definition serves. Is it to sort of create a
norm for the President? Is it for judicial review? Is it to
more clearly define the nature of the debate in Congress?
Mr. Perry. Yes. Yes, to all--I think it is yes to all of
it, but that might just be me.
My time has long since expired. The Chair now recognizes
the ranking member, Ms. Titus.
Ms. Titus. Thank you, Mr. Chairman.
No, it is a very interesting discussion. I was just looking
here about the difference between an emergency and a problem.
An emergency occurs when a problem suddenly gets worse, and
then it becomes an emergency. The definition of emergency is
kind of like obscenity. I can't define it, but I know it when
see it, and that is kind of what we have been using.
It is interesting when you talk about the power of Congress
versus the President. The Congress was put first in the
Constitution. It is Article I. It is of the people. It is
supposed to be more powerful than the President. But then you
can argue that over time the President has become more powerful
than Congress, especially in foreign policy.
Now, some of that is systemic. You developed a bureaucracy.
You have got more access to information. You are one person,
you can act quicker than 435. All of that has occurred over
time. But it is also true that Congress is just giving away
power to the President, whether it is war powers as we were
talking about, budget and impoundment control, AUMFs in
specific cases, just giving it away.
Now, you mentioned, Mr. Thallam, that when Congress gets
back into the process, it will give credibility or legitimacy
to the declaration that the President makes, so, they work hand
in hand. But I would argue, sometimes Congress just gives its
power away because they want to get the monkey off their back.
We don't want to be the one to declare war for whatever
reasons. We don't want to be the one to have to step in and
solve this hurricane, so, let's just let somebody else take
care of it because of politics.
It is very hard to separate those politics from that
policy. I just wonder if you would care to comment on that,
anybody?
Mr. Thallam. It is often--I think the line of thinking you
are going down, it is not an accident that a lot of this sort
of--this practice of Congress has happened. Also, by the way, I
use that obscenity definition in my written testimony, so, we
were thinking along the same lines. But that is why it is so
hard.
I think that is why creating procedural structures that
default to it coming to Congress, right, I think that is a
necessary condition. It may not be a sufficient condition for
Congress--I think I used the phrase ``building its policymaking
muscle back up''--but it is a necessary condition to kind of
force Congress to have to address things, not just in
emergencies, in lots of areas.
And I know there are a lot of legal experts in the room,
including yourself. I mean, this is kind of like probably
better titled the National Emergencies Procedures Act, would be
maybe a better way to think of it, because it is the procedure
underlying the use of authorities that were granted elsewhere,
in the same way the APA is not the grant of authority for
regulatory policymaking, but it is an overarching structure,
right. But in this case, this Congress takes an active role,
and by default, and it forces Congress to have to say, yes or
no, and not just kind of say, well, someone will deal with it.
Ms. Titus. Mr. Dayton?
Mr. Dayton. I completely agree. I think there are a couple
of ways to think about some of these things. One is in terms of
``accountability,'' a word we have used, but also, you could
imagine it is credit. To use the--this is an issue that will
probably split the dais, but if you were in favor of President
Trump's border wall emergency, then you get to vote for it as a
Member of Congress and show your support, right. If you were in
favor of President Biden's student loan program, you would get
to vote for it.
And people would have concrete actions and sort of shared
in the credit and shared in the accountability. And I think
that would be very helpful for us as a society to have a
situation where Congress shares more in that credit, because
right now, in the situation like where we have now, you are
sort of bystanders in some of this process, and that is not
healthy for Congress, that is not healthy for our political
culture.
Ms. Goitein. On this question of definitions, there is a
dictionary definition of an emergency, and that includes the
element that the event has to be sudden and unexpected. I would
say that that is also core to the purpose of emergency powers
in our constitutional system. If a problem, however dire, has
been around for years and years and years, Congress has had a
chance to legislate on that problem; and if Congress has
decided that it is better not to legislate on that problem,
then it is not appropriate for the President to sort of take
over through emergency powers.
A system that allows the President to implement long-term
policy through emergency powers not only treads on the
prerogative of Congress, it lets Congress off the hook, which
is part of, I think, what you were getting at.
Ms. Titus. All right. Well, thank you, and I yield back.
Mr. Perry. The Chair thanks the gentlelady.
The Chair now recognizes the gentlelady from Puerto Rico,
Mrs. Gonzalez-Colon.
Mrs. Gonzalez-Colon. Thank you, Mr. Chairman. Happy to be
here.
I think this is an important discussion. And coming from an
island that has a lot of natural disasters, a lot of
emergencies, earthquakes, and with the pandemic as well, I
mean, it is true that sometimes there is a need to extend the
state of emergency due to the scope of the problem. So, yes,
there should be some flexibility, but if an emergency
declaration keeps renewing 40 years, 24 years, is it really an
emergency, or is it just a way to have a continuing policy that
for some reason, Congress or the President does not want to
submit to the legislative process?
So, one of the issues that we were reviewing here is that
there are some emergency declarations that date back to the
Carter administration. While some are still relevant, many are
clearly outdated and no longer an emergency. One of the
questions will be, are there any funds still directed to those
outdated emergency declarations?
Ms. Goitein. So, the oldest emergencies are the IEEPA
emergencies, and one of the things about IEEPA is that it
largely displaces the cost on to the private sector. So, the
private sector incurs tremendous costs in complying with IEEPA
sanctions, and of course, there are economic ramifications in
terms of their not being able to do business in certain ways.
The cost of the Government is less.
Of course, over time it still builds up, and whatever
allocations are made to Treasury, to the Office of Foreign
Assets Control, OFAC, then go into sort of oversight of these
sanctions regimes. But it is not as if Congress is earmarking
funds for particular emergencies or for particular emergency
declarations. I think if you were getting the reporting you are
supposed to be getting, I mean, you do get it for IEEPA
declarations, but for other declarations, you would know what
the money that you are sending out there for more general
purposes is actually being used for.
Mrs. Gonzalez-Colon. We are actually not receiving the
reports. So, is there any way to know how much the private
sector is paying for those kind of emergency measures of that
time?
Ms. Goitein. There is no way to know. And you look at
something like the 9/11 emergency, which has now been in place
for 22 years, and I would expect that that price tag is
staggering because that declaration is still being relied on
for things that, frankly, have nothing to do with 9/11.
So, as recently as 2017, President Trump relied on the 9/11
emergency declaration to fill a chronic shortage in Air Force
pilots. I would like very much to see how much money has been
spent in that----
Mrs. Gonzalez-Colon [interrupting]. And how do we enforce
those reports? What should be the mechanism to enforce those
reports?
Ms. Goitein. Well, you have the power of the purse,
Congress does, generally speaking. You could conduct an
oversight hearing. The question is, who you would have in front
of you to ask questions of for the 9/11 emergency declaration.
It is the Department of Defense that is supposed to be
submitting the reports, so, it might not be this committee's
jurisdiction.
Maybe some of my witnesses have ideas.
Mr. Thallam. I mean, this is absolutely appropriate for
language that should go into appropriations, like this should
be a condition--I don't want to get into the specifics of how
that was, but, I mean, these are absolutely appropriate things
that Congress has and should ask for and using the power of the
purse say, hey, this isn't just a call or an email asking for
these, this is Congress saying that this is part of your job,
executive branch, and we need this to do our job.
Mrs. Gonzalez-Colon. Question: I know that the Presidents
have used past emergency declarations to proceed with
activities that don't really relate to the initial emergency.
How often, or how common is it for Presidents to use prior
declarations of emergency to actually proceed with their
priorities?
Ms. Goitein. I am sorry, I had trouble hearing that.
Mrs. Gonzalez-Colon. Yes. How often or how common is it for
Presidents to use prior declarations of emergency to proceed
with their priorities?
Ms. Goitein. Again, it is hard to know without better
reporting on how those emergency declarations are being used.
But I would say that the best example that I think we have is
probably the 9/11 emergency declaration, and that has certainly
been used for unrelated purposes.
So, for example, that declaration was used in 2003 to call
up reservists and implement ``stop-loss'' during the Iraq war,
which, of course, had nothing to do with 9/11, and that it has
been used since then to sort of artificially prop up military
strength in ways that would otherwise either run up against
limits that Congress has put in place, or require specific
congressional authorization, and the declaration is used to do
those things without the necessary authorization.
Mrs. Gonzalez-Colon. Thank you. My time expired. I yield
back.
Mr. Perry. The gentlelady's time is expired.
The Chair now recognizes Representative Van Orden.
Mr. Van Orden. Thank you, Mr. Chairman.
I want to be very clear, this issue is much more nuanced
than it appears to be, and I would like to give you an example,
and I will be bragging on the State of Wisconsin. There is a
statute, it is 323.10. It says the Governor is capable of
declaring a state of emergency, but after 60 days, it will
expire automatically unless it is affirmed by a joint
resolution, which is awesome. So, I think that is the framework
we could use.
However, in the State of Wisconsin, when the Governor
declared an emergency for COVID, at the 60-day mark, he tried
to kick the can down the road and hand it to a woman named
Andrea Palm, who was the health secretary, and tried to extend
the ability for him to have our State held in a state of
emergency. That was declared unconstitutional by the Wisconsin
State Supreme Court.
And here is where I must strongly and vehemently disagree
with my colleagues on the other side of the aisle saying that
we must forget about the issues of the day and focus on the
long term. The reason I say this is now Andrea Palm works for
the Department of Health and Human Services under the Biden
administration. So, someone who tried to unconstitutionally
continue the state of lockdown in the State of Wisconsin was
promoted to the Federal Government.
So, in fact, we must hold people accountable directly who
are responsible. They took 2 years away from our children, drug
and alcohol addiction have skyrocketed, spousal abuse and child
abuse are skyrocketing, our kids don't know how to read any
longer, they don't know how to socialize because bureaucrats
and politicians got drunk on power, and they locked down our
country. There are still mobile COVID test sites in Baltimore
where you drive up in your car and you wait for someone to
approach you to test you for COVID. Why? Because the Government
instilled fear in people.
So, we all stopped for 60 days in the State of Wisconsin
and said, we are lawful citizens, we are obeying the law. But
in 61 days, when the Government acted unconstitutionally, we
said no. And what people tried to say is that you can't do
both. Well, the same person that adheres to the law strictly is
also the same person that stands up when the people who are
governing you are not following the law. And that is the
nuanced part of what is taking place here, and it is still
taking place. So, in fact, I want to hold the people
accountable that have been doing this, because they must or it
will never change.
And again, I want to thank you so much. I can't believe
that this hearing is not--I mean, this should be the showcase
for Congress. It is unbelievable. So, let me just--I want to go
through each one of you real quick. Do you guys believe that
the same person that adheres to these emergencies should be the
same person that when they clearly violate the constitutional
authority that they are the ones that stand up and say no, that
those can exist in the same universe? Mr. Dayton?
Mr. Dayton. I am sorry, I was having a little bit of
trouble hearing you. Can you restate?
Mr. Van Orden. OK. I just want to be clear and I want to
ask you, states of emergency should exist during certain
periods of time. So, the person that adheres to the law when it
is put out lawfully, can they be the same person that says no
once those constitutional authorities have expired?
Mr. Dayton. Oh, I think you can easily imagine a situation
where Congress, let's say one of these reforms passed, or like
happened in Wisconsin where the legislature would say that is
appropriate now, and then, come to a different determination
when the facts change, right. I think in many ways we saw that
over the COVID national emergency here in Congress where it
went from--in the Senate from 49 votes last March to 68 votes
this March.
Mr. Van Orden. Excellent.
Mr. Thallam. Yes, the exact point that the--by creating a
default, also an emergency declaration gives time for Congress
or a legislature to weigh in where they may not within 24 hours
or 48 hours of the onset of an emergency. But now, you are
creating a window and it says, Congress or legislature, you
have to make this choice, and if this is going to continue then
you either say yes, or if you think it is not going to, you say
no. And in that case it sounded like it was challenged by the
court. A statute could be challenged if a President didn't----
Mr. Van Orden [interposing]. Right.
Mr. Thallam [continuing]. Follow the structure that was
laid out.
Mr. Van Orden. Ma'am?
Mr. Chairman, please indulge me for a second.
Ma'am?
Ms. Goitein. Emergency powers deliberately give the
President a tremendous amount of discretion, especially when
taken together in ways that Congress cannot predict how the
President might choose to use them, and Congress can't predict
what the circumstances will be.
So, I think it makes a good deal of sense to have that
period of time to give the President flexibility in the
immediate aftermath of the crisis, but to have that time for
Congress to see how the emergency powers are being implemented
and come to its own judgment about whether, first of all, they
are being implemented as Congress maybe intended, but also,
whether emergency powers are the right way to deal with that
particular circumstance. So, I think it makes good sense.
Mr. Van Orden. Excellent. Thank you, ma'am.
So, I just want to be clear that these types of things have
been used for political purposes. And by painting people as
extremists, you are actually attempting to remove their
constitutional rights, and that has been proven over and over
again.
So, Mr. Chairman, thank you so much.
And thank you for coming here today. I yield back.
Mr. Perry. The Chairman thanks the gentleman. The gentleman
yields back.
There are no other members of the subcommittee that have
not been recognized, so, with that, we will conclude the
hearing for today. I would like to thank each of our witnesses
for coming here, for your time, and your expertise.
I do ask unanimous consent that the record of today's
hearing remain open until such time as our witnesses have
provided answers to any questions that may be yet submitted to
them in writing.
Without objection, so ordered.
I also ask unanimous consent that the record remain open
for 15 days for additional comments and information submitted
by Members or witnesses to be included in the record of today's
hearing.
Without objection, so ordered.
The subcommittee stands adjourned.
[Whereupon, at 11:51 a.m., the subcommittee was adjourned.]
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