[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
             
             
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     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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \4\ Stafford Act, Pub. L. No. 93-288, 88 Stat. 143.
    \5\ Id.
    \6\ Id.
    \7\ 42 U.S.C. Sec.  5122.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \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].
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \33\ See Declared Emergencies, supra note 20.
---------------------------------------------------------------------------

             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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

                             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 
[email protected].
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \16\ Arms Export Reform Act of 1986, S. 2834, 99th Cong. (1986), 
https://tinyurl.com/4xbnb7py.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
      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.
---------------------------------------------------------------------------
    \21\ S. Rep. No. 116-159, at 5-6 (2019), https://tinyurl.com/
2ec9fbcb.
---------------------------------------------------------------------------
      In October 2019, 15 Senators, comprising 9 Republicans 
and 6 Democrats, asked leadership for floor time to move forward on 
this legislation.\22\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
      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.
---------------------------------------------------------------------------
      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\
---------------------------------------------------------------------------
    \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 . . . .'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
                 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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/.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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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