[Senate Hearing 118-343]
[From the U.S. Government Publishing Office]
S. Hrg. 118-343
RESTORING CONGRESSIONAL OVERSIGHT
OVER EMERGENCY POWERS: EXPLORING OPTIONS
TO REFORM THE NATIONAL EMERGENCIES ACT
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HEARING
BEFORE THE
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
MAY 22, 2024
__________
Available via the World Wide Web: http://www.govinfo.gov
Printed for the use of the
Committee on Homeland Security and Governmental Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
__________
U.S. GOVERNMENT PUBLISHING OFFICE
55-977 PDF WASHINGTON : 2024
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware RAND PAUL, Kentucky
MAGGIE HASSAN, New Hampshire RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona JAMES LANKFORD, Oklahoma
JACKY ROSEN, Nevada MITT ROMNEY, Utah
JON OSSOFF, Georgia RICK SCOTT, Florida
RICHARD BLUMENTHAL, Connecticut JOSH HAWLEY, Missouri
LAPHONZA BUTLER, California ROGER MARSHALL, Kansas
David M. Weinberg, Staff Director
Christopher J. Mulkins, Director of Homeland Security
Lena C. Chang, Director of Governmental Affairs
James F. Hiebert, Professional Staff Member
Dominic S. Thibault, Research Assistant
Joseph L. Mancina, Fellow
William E. Henderson III, Minority Staff Director
Christina N. Salazar, Minority Chief Counsel
Megan Krynen, Minority Professional Staff Member
Laura W. Kilbride, Chief Clerk
Ashley A. Gonzalez, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Peters............................................... 1
Senator Paul................................................. 2
Senator Ossoff............................................... 13
Senator Hassan............................................... 15
Senator Rosen................................................ 19
Prepared statements:
Senator Peters............................................... 29
WITNESSES
WEDNESDAY, MAY 22, 2024
Elizabeth Goitein, Senior Director, Liberty & National Security
Program, Brennan Center For Justice, New York University School
of Law......................................................... 3
Satya Thallam, Senior Fellow, Foundation for American Innovation. 5
Gene Healy, Senior Vice President for Policy, Cato Institute..... 6
Alphabetical List of Witnesses
Goitein, Elizabeth:
Testimony.................................................... 3
Prepared statement........................................... 30
Healy, Gene:
Testimony.................................................... 6
Prepared statement........................................... 67
Thallam, Satya:
Testimony.................................................... 5
Prepared statement........................................... 61
APPENDIX
Soren Dayton, Director of Governance, Niskanen Center Statement
for the Record................................................. 76
RESTORING CONGRESSIONAL OVERSIGHT
OVER EMERGENCY POWERS: EXPLORING
OPTIONS TO REFORM THE NATIONAL
EMERGENCIES ACT
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WEDNESDAY, MAY 22, 2024
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in room
SD-342, Senate Dirksen Building, Hon. Gary Peters, Chair of the
Committee, presiding.
Present: Senators Peters [presiding], Hassan, Rosen,
Blumenthal, Ossoff, Paul, Scott, and Marshall.
OPENING STATEMENT OF SENATOR PETERS\1\
Chairman Peters. The Committee will come to order.
When a crisis unfolds, our government needs to be able to
respond quickly. Whether it is a pandemic, extreme weather, or
a foreign attack, we must be ready to protect the safety and
security of our citizens. In order to act quickly when disaster
strikes, Congress has given the President broad emergency
powers.
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\1\ The prepared statement of Senator Peters appears in the
Appendix on page 29.
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Most emergency powers have never been used, but they could
potentially bring sweeping changes to our government, economy,
and society. These powers could allow the government to take
over communication channels, control transportation systems,
halt trade with other countries, and more. Without an
appropriate check from Congress, there is a risk that these
powers could be misused or abused.
That is why Congress passed the National Emergencies Act
(NEA) in 1976. This legislation gave Congress the power to
conduct oversight over these powers, including a mechanism to
quickly end a national emergency. But after a 1983 Supreme
Court decision, the National Emergencies Act had to be amended,
and the mechanism for Congress to end a national emergency was
weakened. It now requires a veto-proof two-thirds majority in
both chambers of Congress.
In other words, there is an imbalance of power. It is easy
for a President to declare a national emergency, but very hard
for Congress to end one.
We have seen Presidents of both parties increasingly use
emergency powers. In cases like the Coronavirus Disease 2019
(COVID-19) pandemic, this was necessary to protect our economy
and public health. In other cases, recent Presidents have used
emergency powers to attempt to advance their policy goals,
often in areas where Congress should be providing input and
oversight.
Reforming the National Emergencies Act is not about
thwarting the policy goals of either party. It is about
strengthening our democracy, and ensuring Congress maintains
its responsibility to oversee Executive power.
We have had bipartisan support for this reform in the past.
I am hopeful that we can build on that progress, and am looking
forward to considering legislative options that can advance in
this Committee, this Congress.
We must examine how we use our current national emergency
power authorities, and ensure that Congress can effectively
oversee emergencies. Today's hearing, and our panel of expert
witnesses, will help us do that, and I look forward to the
discussion.
Now I recognize Ranking Member Paul for his opening
remarks.
OPENING STATEMENT OF SENATOR PAUL
Senator Paul. In 1867, a journalist named Walter Bagehot
explained that in Britain the monarchy in the House of Lords no
longer exercised true governing authority, that the real work,
the real power of government was done by the House of Commons
and the Prime Minister. In contrast, the United States has
allowed the majority of governing power to remain in the
Executive Branch. In some ways, the United States of America
(USA) is a monarchy in disguise.
The United States maintains the veneer of a constitutional
republic, but often operate as an elected monarchy in which the
President exercises awesome and unchecked power by decree.
Today the President can unilaterally determine when and how to
unlock and exercise extraordinary powers not permitted during
normal operations. Once the President simply declares an
emergency, emergencies are rarely terminated. The national
emergency declared in reaction to the 1979 Iranian hostage
crisis is still in effect to this day.
Some powers are so inimical to the concept of
constitutional republic that they could never have been granted
to the President, or should have never been granted to the
President in the first place. One such emergency power,
pursuant to the Communications Act of 1934, gives the President
nearly unchallenged authority to restrict access to the
Internet, conduct email surveillance, and control computer
systems, television, and radio broadcasts, and cellphones.
President Woodrow Wilson actually used a similar power three
times during World War I.
These laws were written for a different time, but this
power, which some refer to as the ``internet kill switch,''
threatens the rights protected by the First and Fourth
Amendments as well as property rights, simply by declaring an
emergency. This dangerous imbalance of constitutional
separations of powers is not simply aggrandizement by the
Executive Branch. Congress has been complicit and made itself a
feckless branch of the Federal Government by granting the
President so many emergency powers and refusing to regularly
vote on termination of national emergencies as required by
current law.
We do not have to accept as inevitability the degeneration
of a republic into a rule by an all-powerful Executive. We do
not have to be a monarchy disguised as a republic. It is time
for Congress to restore itself as the first among equals of the
branches of government, as envisioned in the Constitution.
I hope this hearing marks only the beginning of a serious
and sustained effort to restore the Constitution, reclaim the
authority of Congress, and protect the liberties of the people
by paring back the vast emergency powers delegated to the
President.
Chairman Peters. It is the practice of the Homeland
Security and Governmental Affairs Committee (HSGAC) to swear in
witnesses, so if each of you will please stand and raise your
right hand.
Do you swear the testimony that you will give before this
Committee will be the truth, the whole truth, and nothing but
the truth, so help you, God?
Ms. Goitein. I do.
Mr. Thallam. I do.
Mr. Healy. I do.
Chairman Peters. Thank you. You may be seated.
Our first witness is Elizabeth Goitein, and she is the
Senior Director of the Liberty and National Security Program at
the Brennan Center for Justice. Prior to that role, she served
as Counsel to Senator Russ Feingold and as a trial attorney in
the Federal Programs Branch of the Civil Division of the
Department of Justice (DOJ).
Ms. Goitein is a nationally recognized expert on
Presidential emergency powers, government surveillance, and
government secrecy.
Ms. Goitein, thank you for being before us here today, and
you are recognized for your opening comments.
TESTIMONY OF ELIZABETH GOITEIN,\1\ SENIOR DIRECTOR, LIBERTY &
NATIONAL SECURITY PROGRAM, BRENNAN CENTER FOR JUSTICE, NEW YORK
UNIVERSITY SCHOOL OF LAW
Ms. Goitein. Chair Peters, Ranking Member Paul, and Members
of the Committee, thank you for this opportunity to testify.
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\1\ The prepared statement of Ms. Goitein appears in the Appendix
on page 30.
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The legal framework for emergency powers in this country is
in urgent need of reform. It grants the President sweeping
powers, some of which seem like the stuff of autocratic
regimes, with few safeguards against abuse. Fortunately, there
is a ready way for Congress to build a meaningful check into
this system.
Emergency powers have existed in countries around the world
for hundreds of years. The theory behind them is simple.
Because emergencies are, by definition, unforeseen and
unforeseeable, the powers conferred on the government by
existing laws might be insufficient to address them. But
amending the law to provide greater powers might take too long
and might do damage to principles that are held sacrosanct in
ordinary times.
Emergency powers thus authorize a limited departure from
the legal norm. Their purpose is to give the head of State a
temporary boost in power until the emergency passes or until
there is time to change the law through the normal political
process.
Many countries have emergency powers written into their
constitutions. The U.S. Constitution is an outlier. It grants
no explicit emergency powers to the President, so Presidents
have, for the most part, relied on Congress to provide them.
About a century ago, a system evolved where Presidents
would declare a national emergency, and that declaration would
trigger special powers contained in a whole range of statutes,
all of which say something like ``in a national emergency, the
President can do X.'' But there was no overarching statute
governing this system. The President did not have to identify
the powers he was invoking, he did not have to report to
Congress, and there was no limit on how long emergency
declarations could remain in place.
Congress passed the National Emergencies Act in 1976 to
rein in Presidential power. It attempted to do that in three
main ways. First, it provided that emergency declarations would
expire after a year unless the President renewed them; second,
it allowed Congress to terminate emergency declarations using a
legislative veto, a law that goes into effect without the
President's signature; and third, it required Congress to meet
every six months while an emergency declaration was in effect
to consider a vote on termination.
By any measure, the National Emergencies Act has failed to
achieve its purpose. Expiration of emergency declarations after
one year, which was supposed to be the default, has become the
rare exception. There are 43 emergency declarations in place
today, most of which have been in effect for over a decade. In
1983, the Supreme Court held that legislative vetoes are
unconstitutional, so now Congress effectively needs a
supermajority to terminate a declaration over the President's
likely veto. For more than 40 years, Congress simply ignored
the requirement to periodically review existing emergencies.
Why should this worry us? Because an emergency declaration
unlocks powers contained in more than 130 statutory provisions,
and some of these carry enormous potential for abuse. There is
a law that allows the President to take over and shut down wire
or radio communications facilities. It was last invoked during
World War II, when wire communications meant telephone calls or
telegrams, and most American households did not even own a
telephone. Today, it could arguably be used to exert control
over U.S.-based internet traffic.
Other laws allow the President to freeze Americans' assets
without any judicial process, to control domestic
transportation, and even to suspend the prohibition on
government testing of chemical and biological agents on
unwitting human subjects.
Given how potent these powers are, it is remarkable that
there has not been more abuse. We have been lucky. But it would
be irresponsible to continue to rely on luck or Presidential
self-restraint. Congress should pass legislation to restore its
role as a check on these powers. There are several bills
pending before Congress right now, broadly supported by
Democrats and Republicans, that would require emergency
declarations to terminate after 30 days unless approved by
Congress using expedited procedures. This simple, commonsense
change would give Presidents flexibility when it is most
needed, in the immediate aftermath of a crisis, while still
allowing Congress to step in and serve as a backstop against
Executive overreach or abuse.
Thank you, and I look forward to your questions.
Chairman Peters. Thank you.
Our second witness is Satya Thallam. He is a Senior Fellow
at the Foundation for American Innovation. Mr. Thallam is a
policy expert and an advisor on administrative law, regulatory
policy, and emergency powers. Previously he was a senior policy
official at the Office of Information and Regulatory Affairs
(OIRA) under President Trump. He also served as the Chief
Economist on the Senate Homeland Security and Governmental
Affairs Committee--I am familiar with that Committee--serving
under Chair Johnson.
Welcome back to HSGAC. You may proceed with your opening
comments, Mr. Thallam.
TESTIMONY OF SATYA THALLAM,\1\ SENIOR FELLOW, FOUNDATION FOR
AMERICAN INNOVATION
Mr. Thallam. Thank you, Chair Peters, Ranking Member Paul,
and Members of the Committee. Thanks for your invitation to
testify and return to a place I consider a second home. My name
is Satya Thallam. You have my bio. But as was mentioned is most
pertinent, I was four or five years a senior staffer at this
very Committee where the final bill that I managed was a
proposed reform to the National Emergencies Act. I did that
before I left, which, as was alluded to in your opening
statement, was reported favorably by voice vote at the time.
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\1\ The prepared statement of Mr. Thallam appears in the Appendix
on page 61.
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I will forego restating much of what has been and will be
said by my esteemed colleagues, especially since I could
probably just copy and paste the Chair and Ranking Member's
opening statements and just enter that into the record because
I agree with all of it. But I will remark on a couple of
comments.
First, the National Emergencies Act is a thoughtful
solution to a problem of Congress' own making. Like many things
in both Executive and congressional practice, sometimes one-
time circumstances prompted one-time responses. But over time
those policy responses buildup without any systemic
consideration 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. The Federalist Papers speaks of powers needed to
address, ``national exigencies.'' In 1776, General Washington
observed ``desperate diseases require desperate remedies.''
When the Continental Congress, needed to flee Philadelphia,
empowered him with, ``full power to order and direct all things
relative to operations of the war.''
Of course, the word ``emergency'' does not appear anywhere
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, the conceit being
that the Executive, in 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 definitely in need of an
update, owing to an unforeseen judicial decision, its basic
structure is sound and is appropriate for Congress to re-
examine it to better assert Article I prerogative.
Second, a conceptual note, if you will bear a slightly
tortured metaphor. Think of the National Emergencies Act not as
the direct grant of emergency power itself but as a key which
unlocks a vault in which is enclosed the actual instruments of
emergency response. That is, Congress, when authorizes through
other statutes emergency powers, adds to the tools in the
vault. The problem is that there is no timer on this vault, nor
easy, plausible way to take back the key.
Another central conceit. Emergencies are, by definition,
unpredictable, but they should also, by definition, be time
limited and self-evident. Therefore, Congress does not need to
run down the impossible task of prescribing every possible
emergency but rather ensure it has the means to have its say
with respect to emergency declarations and the attendant
emergency powers based on those generalized aspects.
However the Committee decides to proceed, 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, and I look forward to your questions.
Chairman Peters. Thank you.
Our third witness is Gene Healy. He is the Senior Vice
President for Policy at the Cato Institute. His research
interests include Executive power and the role of the
presidency as well as federalism and overcriminalization.
Mr. Healy, welcome to the Committee. You may proceed with
your opening remarks.
TESTIMONY OF GENE HEALY,\1\ SENIOR VICE PRESIDENT FOR POLICY,
CATO INSTITUTE
Mr. Healy. Thank you. Chair Peters, Ranking Member Paul,
and distinguished Members of the Committee, thank you for the
opportunity to testify today. As my fellow witness, Ms.
Goitein, mentioned, upon assuming office the President now
enjoys access to over 230 statutory powers that he can activate
in a self-declared national emergency. Most of them could be
triggered simply by saying the magic words and putting a
signature on an emergency declaration.
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\1\ The prepared statement of Mr. Healy appears in the Appendix on
page 67.
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My other co-panelist, Mr. Thallam, suggests that we think
of these powers as tools contained in a vault. I like that
metaphor but in some cases for ``tools'' I would substitute
``weapons.'' The original national Emergencies Act was an
attempt, as he says, to safeguard that vault and time-limit the
President's access to the weapons that it holds. But when the
NEA framework collapsed in the mid 1980s, the vault door swung
open, and since then the only thing keeping Presidents from
raiding the arsenal is their sense of self-restraint.
In that light it actually really is remarkable that we have
not seen far greater abuses, despite the lack of meaningful
legal checks on these powers. Up until now, according to the
Brennan Center's research, nearly 70 percent of these powers
have never been triggered, at least not yet.
But over the last two administrations, we have seen that
whatever norms once restricted the use of Presidential
emergency power have eroded. For instance, in decades past no
President seems to have imagined that you could tap into that
arsenal to do an end run around Congress in a budget fight, but
that is precisely what President Trump did in February 2019,
when he declared a national emergency in order to build a wall
on the Southern border.
Nor does it seem that any prior President imagined he could
invoke emergency powers to permanently cancel hundreds of
billions of dollars in student loan debt without authorization
from Congress, but that is what President Biden attempted with
another emergency proclamation in August 2022.
As my colleagues have suggested, the way to resecure the
emergency powers vault is pretty straightforward. It involves
amending the National Emergencies Act to impose an ``approve or
expire'' framework, sunsetting Presidential emergency
declarations after a matter of weeks, and requiring actual
authorization from Congress to extend them further.
Those process reforms are essential, but I would like to
suggest that the Committee consider substantive reforms, as
well, in addition to thinking about how to safeguard the vault,
taking a look at the arsenal that is within it. If there are
weapons in that vault that the President does not need, weapons
that are especially susceptible to abuse, consider taking them
off the shelves.
For instance, any comprehensive effort at emergency powers
reform will ultimately have to deal with the International
Emergency Economics Powers Act (IEEPA), at some point. That
1977 law has been the source of nearly 90 percent of emergency
declarations historically, and over 90 percent of the ones
still in effect today.
While most of these have been fairly uncontroversial, and
not actually emergencies, the vast powers that IEEPA grants are
particularly susceptible to abuse. For instance, in the months
after he declared the border wall emergency, President Trump
twice threatened to weaponize the statute against major U.S.
trading partners, first against Mexico with a series of across-
the-board tariffs that would go into effect unless they cracked
down on cross-border migration, and shortly after that the
President cited the statute as authority for hereby ordering
American companies to get out of China. Thankfully, the
President did not follow through on those threats, but if a
future President does it is not at all clear that the courts
will stop that action.
Even more concerning, nothing in the statute prevents it
from being turned against American citizens. Such uses have
been rare, but they are potentially available. Substantive
reforms in these areas could include barring IEEPA's use as a
trade war weapon, restricting its use to directly target
Americans, as well as shoring up due process protections for
any United States person caught up in the statute's sweep.
In conclusion, any of these reforms would provide a better
check on abuse of power than depending on Presidential self-
restraint. It should be clear by now that that is far too weak
a check.
I thank the Committee for its attention to this important
issue, and I look forward to your questions.
Chairman Peters. Thank you.
Mr. Thallam, most reform efforts to the National
Emergencies Act propose that Congress affirmatively approve
each national emergency. My question for you is, what is the
value of having Congress approve rather than disapprove each
emergency? Mr. Healy, I want you to weigh in on this too,
please. Mr. Thallam.
Mr. Thallam. I think I would slightly modify that. In the
first instance, most of the proposals do not require Congress
to approve but for a certain time limit, so after a certain
period, so 30 to 60 days, it would require Congress to approve
any extension of that. In the failure of Congress to decide to
extend it, it would be ended by default.
I think, again, the original NEA had a disapproval
mechanism that got around the Presidential veto, but of course,
I do not believe the authors anticipated a court decision that
would invalidate that structure.
I think the original authors of the National Emergencies
Act, if they were addressing this issue now, would do what is
in many of the recent proposals, which is, by default, Congress
has to assert its approval or the emergency ends by default. I
think disapproving is just a much higher barrier, and it is
what we result in now.
Chairman Peters. Ms. Goitein, I am going to want you to
weigh in, too, but Mr. Healy?
Mr. Healy. Yes, I think that is right. I think the
frameworks for emergency powers reform that we see now reflect
the Chadha decision, getting rid of the legislative veto. All
the Protecting Our Democracy Act, Article I Act, the other
bills that have been proposed are based on an approve-or-expire
framework in which the President will have 30 days, in the case
of a genuine national emergency, to unlock these powers. But if
the emergency persists and these powers are thought to be
necessary, this weapon is supposed to remain available, then
Congress has to vote.
I think the shape of the statutes we see are a reflection
of what the Supreme Court did in Chadha, and a way to give them
that decision to reassert Congress' authority over these
matters, rather than what has happened since 1985, with the
removal of the legislative veto, we are really in an upside-
down constitutional situation where the President proposes, and
essentially the President disposes, and it takes a veto-proof
supermajority for Congress to reassert its authority. These are
designed to turn the emergency powers practice right-side up.
Chairman Peters. Very good. Ms. Goitein.
Ms. Goitein. I agree with what has been said. It is
important to remember also that a national emergency
declaration gives the President access to truly extraordinary
powers and to a degree of flexibility and discretion that would
not be appropriate during ordinary times, and that Congress has
not chosen to give the President during ordinary times. For
that reason, Congress wanted to make it easy to exercise some
restraint on the President if the President abused those
extraordinary powers. That is why Congress chose the
legislative veto mechanism.
Now that that is off the table, the existing mechanisms for
disapproval require such a high bar that they stack the deck
very much in favor of the President and against Congress. It
throws the balance of power out of whack.
The closest way to approximate the balance of power in the
original National Emergencies Act is the mechanism that has
been proposed in these reform bills, which is an automatic
expiration period of approximately 30 days--in some cases I
think it is 20, depending on the bill--unless Congress votes,
using expedited procedures, which means that it would be a
simple majority vote, where any member could force a vote. This
would prevent obstructionism. Congress would be voting, and a
simple majority would carry the day. It would put Congress back
in the position of being able to exercise a check on these
extraordinary powers.
Chairman Peters. Very good. It is important for these
reforms to be nonpartisan, to understand that we are talking
about Executive power regardless of who is in that office and
what party they may be from. We have three experts, three of
you here before us today, and I would just like to get a sense,
and to all of you, so anyone who wants to chime in, do you
believe that there is a bipartisan consensus among experts,
among policy experts, as to how we reform the National
Emergencies Act, and how would you characterize that right now?
Whoever wants to go first.
Mr. Thallam. This is self-selecting among experts I have
spoken to. There is widespread agreement. I think the folks who
have written and studied this issue agree with this central
conclusion that the NEA, as structurally intended, was fairly
thoughtful, but for an unforeseen judicial decision it rendered
it fairly inert. The best way to address that is with a reform
that inverts the structure.
I would also note it is helpful to think of these reforms
as not just purely oppositional, the Congress versus the
Executive, but it provides and, in fact, forces Congress to
take a stand on emergency declarations. If it truly is an
emergency that is self-evident, that is maybe existential in
nature, then it should be possible for the President to gather
the political support to extend that emergency and that
response. It actually provides an Article I imprimatur on any
emergency declaration, and regardless of how Congress disposes,
it forces Congress to have to step up and say, ``I am taking a
stand on this,'' whether it is a yes or no to continue it.
Chairman Peters. Anyone like to add to that?
Ms. Goitein. I would agree with that. Of all the issues I
have worked on in almost 20 years of doing this type of work,
this issue probably has the broadest and deepest bipartisan
support, not just among policy experts but among Members of
Congress whom I have spoken with.
There is a fundamental understanding that this is not a
partisan issue but an issue of separation of powers, and that
the separation of powers is not an optional feature of the
Constitution that can be switched on or off, depending on who
is in the White House. It is a vital protection for our
democracy. Emergency powers can be abused, and have been
abused, by President of both parties.
This is fundamentally not a partisan issue. It is an issue
of safeguarding individual liberties, of safeguarding our
democracy, and I think that is well understood.
Chairman Peters. We are over time, but Mr. Healy, do you
have a quick response?
Mr. Healy. I do not have much to add to what my co-
panelists have said. Yes, I think this is both within the
policy community, such as it is, and on Capitol Hill, this is
an issue that gets a lot of bipartisan support because we
should take a longer time horizon and recognize that at any
given point somebody may like what a President does with the
vast delegation of unilateral powers. But over time it erodes
separation of powers and the rule of law, and I think we have
seen that in the last two administrations, and we have seen
bipartisan support for reforming it.
Chairman Peters. Great. Thank you. Ranking Member Paul, you
are recognized for your questions.
Senator Paul. I do not think it has to be partisan at all.
An example that somebody who once worked for Russ Feingold is
in complete agreement with somebody who swung the other party,
in the opposite wing of other party, that there is definitely
overlap. I think there is overlap between the Chair and I on
this issue.
I think when we watch this unfold you tend to see
Republicans louder when Biden abuses the power and Democrats
louder when Trump abuses the power. But I can say that when
Trump moved the money around using emergency powers for the
wall I was one of the 12 Republicans who voted to rein in that
power and that it was not an appropriate use. It was abuse of
power.
I think as far as an adversarial relationship there needs
to be some. There needs to be legislature against the
Executive, like the good old days, when we could combine
Republicans and Democrats to always say, ``We are going to do
as Madison said, put our ambition against their ambition,'' and
those checks in power would be the way the Republic would
remain protected.
We do not do that enough. I cannot remember when. It has
been decades since the legislature rose up and said enough is
enough. We did a little bit in the 1970s. The Senate Select
Commitee to Study Governmental Operations with Respect to
Intelligence Activities (CHURCH) was a reaction to too much
Executive power and too much power within the intelligence
agencies. But I can tell you how bad it is right now. I am
trying to get the classified Church Committee report from the
1970s and cannot get it.
The Administration, the Executive, but how is the way I can
get it? Somebody on Appropriations would have to call up the
current Administration and say, ``Give it to him or we are not
giving you any more money.'' That is the way it would work, and
it should not matter which party we are in. But I cannot get
the classified Church Committee report from the 1970s, which I
think came out of this Committee. It was a special committee,
but, I mean, it was a Senate product, and I cannot get it. It
is just kind of crazy the resistance of the Executive Branch.
I think everybody here understands how things got turned
over topsy-turvy by China, but I think it is important
explaining to the public what we mean by that. The legislative
veto would mean you could just come back I and the legislature
could veto an emergency power or end it, and then the President
did not have to sign it. The court came back and said, no, you
cannot have any laws, and there is some logic to this. You
cannot have a law unless the President signs it.
The only way we can gain our power is we have to let things
expire. The emergency powers have to expire, and this is
getting to my question.
Most of the emergency powers, I think as research by
Brennan Center and as was mentioned by Mr. Healy, as well, are
under IEEPA. Previously we tried to do this, and then we said,
well, we love sanctions, and everybody loves sanctions. We do
not want to do anything to have sanctions expire. But if you
exclude IEEPA you exclude like 90 percent of the emergency
powers.
The real question should not be do you love sanctions or do
you have doubts about sanctions. Do you think sanctions should
be forever and Congress should never weigh in? Maybe if you
love sanctions we should still vote on them, and they should
expire, and come back here six months or a year, and we vote on
them, and if you love them--and I think the majority of people,
I am in the minority, the majority will still vote for
sanctions, like everybody, all the time, everywhere. But there
would at least be a debate and we put our imprimatur on it.
Then by putting our imprimatur on it, if you love sanctions,
actually the sanctions may be stronger because they are not
actually approved by Congress.
But right now we have no say in it, and they go on and on,
and most of the emergency powers, there are really dangerous
ones--internet switch and things--but there also ones that are
used all the time, which are sanctions, increasingly used on
private individuals and other countries, sometimes used on
Americans in other countries.
I guess my question to all three of you, and we will start
with Mr. Healy, is, do you think the reform that time limits,
emergency degrees, and says they have to be affirmatively voted
on by Congress should apply to IEEPA emergencies?
Mr. Healy. I think ultimately it should be under an approve
or expire framework. Now I think there is reasonable debate
that can be had about time limits and particular provisions, or
whether it should all be part of the same bill. But I think if
you were looking down a list of extraordinary emergency
powers--such as the Brennan Center has produced, first came out
in 2018, before the last two controversial uses of emergency
powers--if you were looking down that list you would not have
singled out the Military Construction Codification Act that was
the basis of the border wall emergency, or the Health and
Economic Recovery Omnibus Emergency Solutions (HEROES) Act,
which was the basis of the student loan debt cancellation. I do
not think they would be anywhere near the top of your list of
broad, crazy delegations of power.
I think looking behind a veil of ignorance, looking at that
list, you would identify IEEPA as something that could be
turned against U.S. persons and something that can essentially
make people financial untouchables, and you would be concerned
about that.
Senator Paul. I think you are right, and I just wanted to
interject that during the middle of COVID they took a Centers
for Disease Control and Prevention (CDC) statute from the 1930s
that said you can quarantine people for measles and like 10
other diseases, and whatever other measures are necessary, and
through that the Trump administration canceled mortgages and
said you do not have to pay your mortgages. Then the Biden
administration did the same thing. Both parties were guilty of
this, but he took a statute that had nothing to do with
mortgages and no sane person could think that a quarantine on
measles has anything to do with paying your mortgage, and they
abused that power.
But that should be, whether you like people paying their
mortgages or not or like the rule of law, everybody should say
that is illegal and unconstitutional. We should not let
executives do that. But we do not. We tend to base it on the
policy. Do we like the policy? If we do not like the policy
instead of should the President be able to do this,
unilaterally, on a statute that never gave him this.
Ms. Goitein, on including IEEPA?
Ms. Goitein. IEEPA raises unique considerations, and I
believe it should be addressed separately. The National
Emergencies Act reform bills that are currently pending both go
too far and not far enough in certain ways. I think that
requiring Congress to vote 40 times every year on sanctions
regimes, which is what would happen if you applied the NEA
reform bills to IEEPA declarations, would be impracticable and
possibly unnecessary.
Senator Paul. It possibly could be grouped, as well.
If you have an emergency against Russia and there are 40
different sanctions against Russia, I do not think there is
anything that says that we could not come forward and vote on
the emergencies on 40 different sanctions, not each individual
sanction.
Ms. Goitein. You would need to structure a system where
there could be a vote with expedited procedures on a package of
sanctions, once every year, with amendments in order to strip
individual sanctions regimes.
Senator Paul. It only works if they expire.
Ms. Goitein. That is correct, but that is a slightly
different framework than what is in the bills that are
currently pending before Congress. I would add that this
approval requirement would not solve some of the other problems
with IEEPA, such as the absence of due process protections for
Americans who are swept up in its crosshairs, such as the
humanitarian impacts on innocent foreign populations overseas.
Senator Paul. I agree with all that. The only problem with
separating it is Congress is, as I said in my opening, often
feckless, if not most of the time. If we ever do anything on
NEA it will be a miracle, if we actually pass it through and
get it completely done.
But I would say that if we leave out IEEPA we are leaving
out an opportunity when what we are talking about is
emergencies. People would say, oh, you got rid of four
emergencies out of 79, or something. We are going to get rid of
the minority vote and we are going to fix the minority of the
problem.
If anything I would argue for doing it all at one time. Mr.
Thallam.
Mr. Thallam. To answer your question, should it be
addressed, yes, and I agree that I think there are two concerns
there, not with the intent. One is structurally how those
emergency powers tend to work in practice.
The second is prudential, and putting on my staffer hat I
remember negotiating about how much to include of IEEPA. I just
caution the Committee that you have a reform, or a version of a
reform, that is within grasp and that could pass Congress and
could get to the President's desk. Wholesale, including IEEPA,
just increases the complexity, which does not mean do not go
for it. But it just becomes that much more slippery, and it is
like trying to pick up anti-matter with chopsticks. Don't let
the perfect be the enemy of the good, is the only thing I would
add, even though I agree with the intent.
Ms. Goitein. Could I add one thing to that, just briefly? I
think you are only going to get one bite at the IEEPA apple.
Take the time to do it right. Do not throw some provisions
about IEEPA into the National Emergencies reform bills that
exist right now. Those bills are ready to go. Get them signed
and take the time to do an IEEPA reform bill. The Brennan
Center has a proposal for a legislative reform of IEEPA. I
would be happy to work with anyone on this Committee who would
like to examine that as a path forward. But move forward with
National Emergencies Act reform and then take the time to get
IEEPA right.
Chairman Peters. Senator Ossoff, you are recognized for
your questions.
OPENING STATEMENT OF SENATOR OSSOFF
Senator Ossoff. Thank you, Mr. Chair, and this conversation
has focused, I think, on what is practical legislatively. I
want to ask each of you what is most pressing.
Putting aside the question of what can practically be moved
through this Congress, for each of you, please, beginning with
you, Ms. Goitein, which single statutory reform, one, in brief,
do you believe is most pressing with respect to Presidential
emergency authorities?
Ms. Goitein. I think it is the congressional approval
requirement for national emergency declarations. The reason
that I think that is not only because it can be done
immediately, but it has the biggest bang for the buck because
it significantly curtails the potential for abuse of more than
130 different emergency powers, and it does so by restoring the
balance of power between the President and Congress in a way
that is just good constitutional hygiene.
I agree with something Mr. Healy said earlier, which is
that Congress should also examine the individual tools in the
toolbox. Some of these are powers that arguably no President
should ever have, such as suspending the prohibition on
government testing of chemical and biological agents on
unwitting human subjects. However, I think for the biggest bang
for your buck, start with National Emergencies Act reform with
a congressional approval requirement.
Senator Ossoff. Thank you. Mr. Thallam.
Mr. Thallam. I second that. I think of this as a metalaw,
and probably the ideal situation would be to reform and address
and maybe repeal all of those emergency statutes. I just do not
know how you would go about triaging that.
I think the single most important element, though, of
reform is time limiting. An emergency is impossible to define
in all its characteristics, but by definition it should be time
limited. Otherwise it is not an emergency. there should be some
mechanism that by default ends emergency declarations unless
Congress said, ``You know what? You are right. This is a
continued problem. We are going to take a stand and we are
going to extend it.''
Senator Ossoff. Mr. Healy.
Mr. Healy. I hate to be boring here but I agree with my co-
panelists. Despite what I said about addressing substantive
powers, I do think that sunsetting emergency declarations and
requiring affirmative approval by Congress to extend them
further is the most valuable reform that can be made, if you
have to pick one.
I think, in particular, it is valuable because, as I said a
moment ago, you would not have predicted a recent President's
seizing on these two statutes, the Military Construction
Codification Act and the HEROES Act. But we have seen that when
Presidential restraint in these areas starts to erode there is
a lot of creative lawyering and statutes that you might not
have thought were bottomless wells of unilateral power can be
turned to that purpose. By sunsetting declarations and
requiring affirmative approval I think that tackles a large
part of that problem.
Senator Ossoff. Mr. Healy, and then we will go back down
the line this way, which emergency power do you believe is most
broadly or urgently threatening to civil liberties and due
process right?
Mr. Healy. The provisions of the 1934 Communications Act
that were mentioned earlier I think are pretty sweeping and
staggering, not something that a President needs, even in a
genuine national emergency. I think the potential application
of IEEPA to U.S. citizens, to directly target them, and the
lack of meaningful due process in that area is also a concern.
But again, I think looking down the list of those 130
powers, we should expect that there is any number of them that
will be put to uses that we could not predict in advance.
Senator Ossoff. Thank you. Mr. Thallam, same question, the
single power you believe most threatening to civil liberties
and due process.
Mr. Thallam. I second the 1934 communications law,
especially in the context of creative lawyering and what
communications means today versus what was envisioned in that
law.
Senator Ossoff. Thank you. Ms. Goitein.
Ms. Goitein. I agree, the Communications Act and IEEPA are
probably the ones of most concern. I am going to flag a third
one, since those two were already discussed, and that is the
provision that allows the administrator of the Transportation
Security Administration (TSA), during a national emergency, to
exercise such powers over transportation as the Secretary of
Homeland Security (DHS) shall prescribe, which appears to be a
completely open-ended delegation of authority to the Secretary
of Homeland Security to control domestic transportation, with
no limits or specifications. of course, the ability to move
around freely is critical to many of the other individual
liberties that we all enjoy.
Mr. Thallam. Can I just add one quick thing? I think the
power you should be worried about is the one you have not
thought about. It is the creative, going through the archives,
and finding some obscure provision that no one has thought
about in years, and imagining an administration 10, 15, or 20
years from now pulling it out of the archives and saying, ``I
think this authorizes a pretty unprecedented exercise of
power.''
Senator Ossoff. Ms. Goitein, how could an administration
use emergency power to disrupt the peaceful transfer of power
from one elected Executive to the next?
Ms. Goitein. I wrote about this a little bit in an article
that I published in The Atlantic in 2019. To be honest, I am
reluctant to go into too much detail about how emergency powers
could be abused in this way.
Senator Ossoff. I think that is, with respect, what you are
here to testify on.
Ms. Goitein. Right. I think we need to be very cautious in
having these discussions. One emergency power that actually
falls outside the National Emergencies Act framework that I am
worried about is the Insurrection Act. The Insurrection Act is
a law that allows the President to deploy Federal military
troops to quell civil unrest or to execute the law in a crisis.
There is a lot more to say about it, but it gives the President
extremely broad, and judicially unreviewable, discretion to
deploy troops in ways that could certainly be abused, and that
could be abused in ways that could throw a wrench into the
works, in terms of a peaceful transfer of power
Senator Ossoff. A brief comment on the Insurrection Act
from each of you? I am over time now. Mr. Healy, I would like
your perspective.
Mr. Healy. Yes, I think it falls into the category of
powers that certainly can be abused. It has not been invoked
since the L.A. riots, I believe, in 1992. But if you look at
the discretion the President has under that act it is certainly
something that would be prudent to tighten up.
Senator Ossoff. Thank you all. Thank you, Mr. Chair.
Chairman Peters. Thank you. Senator Hassan, you are
recognized for your questions.
OPENING STATEMENT OF SENATOR HASSAN
Senator Hassan. Thank you, Mr. Chair and Ranking Member
Paul for holding this hearing, and to all of our witnesses
thanks for being here and for sharing your thoughts about how
Congress can reform Presidential emergency powers and
strengthening congressional oversight of those powers.
I want to shift the conversation just a little bit because
of my role as chair of this Committee's Subcommittee on
Emerging Threats and Spending Oversight (ETSO), which is tasked
with combatting waste, fraud, and abuse in Federal programs. I
am concerned that bad actors take advantage of national
emergencies to access funding intended for victims, such as we
saw during the COVID-19 pandemic.
Ms. Goitein, does current law adequately safeguard taxpayer
dollars from waste, fraud, and abuse during Presidentially
declared emergencies, and what additional safeguards or
oversight mechanisms do we need to strengthen protections
against waste, fraud, and abuse during a national emergency?
Ms. Goitein. That is a great question, and it goes to this
issue of congressional oversight. Congress should be able to
oversee exactly how emergency powers are being used, including
how funds are being spent. There is a requirement in the
National Emergencies Act that Presidents report to Congress
every six months on the expenditures directly attributable to
the exercise of emergency powers.
Now, that requirement is not sufficiently detailed. It
should require more of a breakdown. It should also require the
President to specify the particular actions that were taken.
But even this minimal requirement of reporting expenditures has
been honored in the breach.
When it comes to declarations that rely solely or primarily
on IEEPA, the responsibility for reporting has been delegated
to the Secretary of Treasury, and the Secretary has, in fact,
submitted those reports. You can find the notations of
submission in the congressional record.
When it comes to all other emergency declarations, it
appears that the Executive Branch has not been submitting these
expenditure reports for more than 20 years. There are no
notices in the congressional record. Congressional committees
that should have received these reports have been unable to
find them. Reporters who have submitted the Freedom of
Information Act (FOIA) requests have been told that there are
no responsive documents. By all appearances, the Executive
Branch has simply stopped complying, more than 20 years ago,
with a statutory reporting requirement, and that is
indefensible. It prevents Congress from doing the kind of
oversight you are talking about.
Senator Hassan. So, does the reform legislation, that you
all have been talking, about address this? If the Executive
Branch is just not doing it, do we just need to keep that
portion of the Emergency Act as is and just figure out how to
enforce?
Ms. Goitein. The reform legislation does include enhanced
reporting requirements, but it does not directly take on this
issue of noncompliance. I think Congress might need to start
thinking about actions that it can take. I would remind all of
you that Congress has the power of the purse. Congress can
provide, and it has done this in the past, that certain amount
appropriated in funding bills will be withheld or reduced by 10
percent, 25 percent, if required reports are not submitted.
Senator Hassan. Thank you for that.
I now do want to go back to the broader topic, because a
President's ability to declare a national emergency can play an
important role in accelerating the delivery of resources to
areas that need them. So there are times when it is the really
appropriate thing to do, and we have all acknowledged that
here.
But Congress, obviously, needs to provide oversight and a
check on these emergency powers. Under current law, national
emergency declarations can continue on for long periods of
time. Ms. Goitein, how many national emergencies remain open
for long periods of time and how long are emergency
declarations typically held open?
Ms. Goitein. Right now there are 43 emergency declarations
in effect. Most have been in effect for longer than a decade.
Forty-three is a majority of the emergency declarations that
have been declared since the National Emergencies Act was
passed. There have been 79 emergency declarations, and 43 of
them, most of them, are still in place. The longest running
emergency declaration dates back to the Iran hostage crisis in
1979, and we have calculated that the average period of time
for these emergency declarations is approximately 10 years.
Senator Hassan. You all have talked about this some but I
am just going to give you an opportunity. What does it mean for
the scope of Executive authority if national emergencies can be
left open for long periods of time, and what changes--again,
you have talked about some of it, but we will just go down the
panel. I would like you all to comment--what changes would you
recommend?
But start with just what does it mean for the scope of
Executive authority?
Ms. Goitein. What has happened is that this country is
being governed in a State of perpetual emergency. We have these
semi-permanent emergencies that displace the normal operation
of law, and that is the status quo. That is extremely unhealthy
for a democracy. More concretely, any time the President
declares a national emergency, he or she has access to almost
all of the 137 powers, most of which do not include any
particular requirement that anything other than an emergency
declaration be in place.
Even if a national emergency declaration relates to one
specific area of governance, dozens of emergency powers in
multiple other areas of governance become available to the
President. The temptation is to leave these declarations in
place indefinitely because it gives the President access to
such a deep well of powers.
Senator Hassan. Mr. Thallam.
Mr. Thallam. So think of it this way. In all those other
emergency powers statutes, those are supposed to be delegations
of authority in particular circumstances, time, and place.
There is a robust argument about what is the scope of delegable
authorities and so on, and we will kind of put that aside.
But the point is Congress meant for those to only exist in
certain circumstances, I would say at a very minimum time-
limited circumstances. What they have effectively become is now
just writ large authorities that have just been wholesale
granted to the Executive. That is what you get. You get
Congress trying to be judicious in saying we acknowledge that
sometimes things happen you cannot foresee, and it would take
too long, and in execution of the law the President should be
able to do this thing. But now that is just in all time, in all
places, in all circumstances.
It self-defeats the Congress' Article I prerogative to
decide when and where the Executive is supposed to have certain
authorities.
Senator Hassan. Just briefly if I could, Mr. Chair, from
Mr. Healy.
Mr. Healy. Sure. If you look down the list of 43
emergencies, you will see very few that are considered genuine
emergencies, titles like referring to the situation in Burundi,
or something like that. I think there is a problem with long-
standing declarations dating back to 1979, even where they are
relatively uncontroversial, in the sense that we have defined
emergency down, and as someone put it, we are sort of
cheapening the currency of national emergencies. A national
emergency should be something akin to a war and unforeseen
circumstances, a pandemic, an asteroid strike, and the effect
of a long list of long-standing national emergency
declarations, most of which do not seem to be genuine
emergencies, I think undermines the seriousness of the concept.
Senator Hassan. Thank you. Thank you, Mr. Chair.
Chairman Peters. Thank you. Ms. Goitein, your research
shows that Presidents have only recently begun to really push
the bounds of the emergency powers in their policy priorities.
My question for you is why do you think that is the case? Why
are we really now seeing this recently where we did not see it
before? Other two witnesses, feel free to chime in, as well.
Ms. Goitein.
Ms. Goitein. To be clear, there have been abuses of
emergency powers in the past, but the most egregious abuses
that we have seen in the last 100 years in this country have
been based on claims of inherent constitutional authority, not
statutory emergency powers. That was the case for the
internment of Japanese Americans during World War II, for
example. That was also the case with the torture of detainees
after September 11, 2001 (9/11).
When it comes to the powers available under the National
Emergencies Act, there has been remarkably little abuse or
misuse, other than IEEPA, which really has to be considered
separately for some of the reasons that we have talked about.
When Presidents have declared national emergencies it has
been few and far between, and it has generally been in response
to a sudden, unexpected crisis that required immediate action.
The reason for this is really more of a description than an
explanation, It has been a norm of self-restraint on the part
of Presidents who have access to these powers. The problem with
that is that once these norms are shattered they are extremely
difficult to put back together.
President Trump opened the door to abusing statutory
emergency powers when he declared a national emergency to
secure funding for the border wall after Congress had refused
to provide that funding. President Biden nudged the door open a
little bit more when he relied on emergency powers to forgive
student loan debt, again after Congress has considered
legislation to forgive debt and had not passed that
legislation.
We have had a norm that has protected us, and now that that
norm has been set aside, I am concerned that we could see more
of these misuses of emergency powers in the future.
Mr. Thallam. I do not think I can draw a conclusion about
the long sweep of history and the increased use of emergency
powers, but I will say that in our time working on this issue
at the Committee it was different emergencies that motivated
both Democrats and Republicans on the Committee. I am in the
weird position of speaking for people who are sitting on this
very dais, which I think constitutes hearsay. But some of the
Democrats on the Committee were interested in this topic by
that border wall emergency. It crystallized this notion of
creative uses of emergency power that seemed beyond what was
delegated by Congress. On COVID, the student loan emergencies
drew interest, especially from more the Republican side of the
Committee or in Congress.
I think the point is if you create a policy-neutral
mechanism that is kind of a metalaw. I think what you do is you
do not address a specific emergency. You are addressing the
whole notion of emergency powers. That is one thing that I was
proud to have been able to work on. Even though different
Members of the Committee were kind of drawn to the legislation
for different reasons or in response to different reasons, it
arrived at the same answer. I would note during that time,
nobody on the Committee that I spoke to raised an objection
with the thrust of the legislation. There were disagreements
about whether IEEPA should be included, and so on, but nobody
disagreed that this was something that was not worthy of the
Committee's time.
Chairman Peters. Senator Rosen, you are recognized for your
questions.
OPENING STATEMENT OF SENATOR ROSEN
Senator Rosen. Thank you, Chair Peters, Ranking Member
Paul. This is a really important hearing and I appreciate the
witnesses being here today.
Of course, the National Emergencies Act, provides the
President with 135 statutory powers when they declare a
national emergency. The powers cover a wide range of a variety
of critical areas, we have all talked about them, ranging to
communications, transportation, public health, military power,
and so on.
While these powers, of course, can be helpful in the face
of true emergencies, as we have heard in our testimony today,
and your testimony today, they are also subject to potential
abuse. It is therefore critical that we address the potentials
for reform and we prioritize Executive accountability and
preventing abuse of power.
Ms. Goitein, during your testimony in the House last year
you mentioned that there are no existing requirements that
powers invoked by the NEA have to actually relate to the
emergency declared, that they do not have to actually relate to
the emergency declared. While considering potential reform
options for the NEA, how should Congress ensure that Presidents
do not abuse unrelated powers that could become available
during emergencies? I found this pretty interesting.
Ms. Goitein. The congressional approval requirement after a
period of 30 days serves as a kind of meta-check on all forms
of abuse, including using certain powers that do not even
relate to the nature of the emergency, or a protextual
emergency in order to gain access to other powers.
But there are also versions of National Emergencies Act
reform that explicitly require that the powers invoked must
relate to the nature of, and be used only to address, the
specific emergency that serves as the basis for the
declaration. So that is another way to go about it more
directly.
Senator Rosen. Thank you. I appreciate that. When we think
about whether something is germane and how we have
accountability, when we think about reporting requirements, as
well as Executive accountability for the use of these emergency
powers, it must be a priority. But current law and practices
make oversight and accountability nearly impossible.
As you were just saying earlier, although there are
existing reporting requirements for the NEA reports they can be
difficult to obtain, and if they are available at all. These
reports are essential to having congressional insight,
oversight, into NEA declarations and terminations.
Mr. Thallam, building on what Ms. Goitein was saying, based
on your experience in the Executive Branch, how can you
strengthen the NEA reporting requirement to ensure that powers
are being used appropriately and transparently? We need to see
these things.
Mr. Thallam. That is absolutely correct. As Liza mentioned,
in some of the reforms talking about there is a more explicit
requirement for the declaration to be tied to the powers being
invoked, and also reporting on those powers and how they are
being used, and presumably how funds may be invoked or be
changed in response to that.
I think it is important to keep in mind also it is not that
a lot of damage cannot be done in 30 days, if that were the
default time limit, but it is not an unending amount of time,
if you add an automatic sunset. It does not devalue Congress'
role to do that oversight, which they are entitled to, but it
makes it much less of a concern of years and years go by, and
the administrator of that office that was in charge has now
left, and the new people come in and say, ``I will get back to
you when I get caught up,'' and that sort of kind of hand-
waving that happens.
It makes the issue that is being invoked, the emergency
that is being responded to salient, and momentary in the long
scheme of things, which also forces Congress to make a say,
right, to take a stand, and that forces all of Congress to say,
wait, what do we know about this, or what do we need to know
about it, as opposed to a member of a committee that is looking
at an emergency from 10 years ago and is trying to catch up.
Getting everyone kind of in the same room, metaphorically,
makes it harder for the Executive Branch to ignore.
Senator Rosen. Right. That builds exactly on my next
question, reevaluating existing emergencies. Of course,
emergencies are happening every day. Just watch the Weather
Channel and you see some tragic weather events happening. But
as you all have noted here today there are currently over 40
ongoing national emergencies still in effect, dating back to
the 1970s. Many of these emergencies remain necessary for U.S.
national security. I get that. But as I understand there is
little in current law forcing Presidents to reevaluate
emergencies that have been on the books for decades. Something
from the 1970s, perhaps, should be reevaluated.
To each of the witnesses, in addition to reasserting
congressional oversight of the use of NEA, what do you think we
can really do to incentivize future administrations to assess
the value of existing emergencies, and what can we do about it?
They have gone on this long. Maybe there is some other
legislation we need, if it international security interests,
for example.
Let's begin with Ms. Goitein, and then we will just go down
the line.
Ms. Goitein. Under all of the National Emergencies Act
reform proposals that are currently pending before Congress,
not only would emergency declarations terminate after 30 days
unless approved by Congress, but every year after that, if the
President wanted to renew the emergency for another year, he or
she would again have to get congressional approval using
expedited procedures.
That does two things. First of all, it enables Congress to
act as a check. That is the most important thing. But it also
forces the President to examine the powers that the President
has been using, to examine the success of those powers or the
failure of those powers, to examine whether the conditions
leading to the original emergency declaration are still in
place or whether they have changed--to do that analysis, to
determine whether continuation of emergency powers is really
necessary or whether the emergency declaration can simply be
withdrawn, or whether what is needed is new legislation, a new
permanent authority to deal with a circumstance that may have
become a new normal.
Senator Rosen. That is right.
Ms. Goitein. I think that particular reform is not only a
check that Congress can apply. It also forces some discipline
on the part of the Executive Branch.
Senator Rosen. Thank you. Mr. Thallam.
Mr. Thallam. I think what we see, over time, has been a lot
of ceding of foreign policy to the Executive Branch, and I
think generally most folks think that is kind of the purview,
an area that the President has. But, for instance, our posture
toward Iran, this is of national interest, and it probably
should not be subject to an ongoing, ``emergency'' policy.
I guess I do not have a good answer of how to force the
President to table, any President, but that should be a matter
for congressional deliberation and consideration. If that
should be a permanent policy, but for a change of regime, for
instance--I am not a foreign policy person--that should be a
deliberation that happens between the Executive Branch and the
government. We cannot have a 40-year emergency.
If that should be a permanent policy then we have gone from
emergency response to just good old-fashioned policymaking, and
that is supposed to be an Article I prerogative.
I guess I am kind of hand-waving a little bit. I do not
know how to force that discussion, but Congress should be
asserting that and saying, ``We may even agree with you, Mr.
President, but we need to have a say, and we need to go through
the process to approve it and make it explicit.''
Senator Rosen. Thank you. Mr. Healy.
Mr. Healy. Yes, I think what you tend to see is, with the
exception of the COVID-19 emergency that was actually repealed
legislatively, you have most of the time it is the President
proposes and the President disposes, and maybe gets rid of some
long-standing emergency declarations when international
conditions have changed.
Again, I think that has the effect of devaluing the
currency and seriousness of emergency. If you have a list of 43
emergencies, and a normal person would only recognize two or
three of them as emergencies, I think that is a problem. I
think at some stage, whether it should be done as part of the
same package or not, but at some stage since the bulk of these
are IEEPA-related emergencies, I do think putting them under a
time limits and an approval requirement would force some
scrutiny from the Legislative Branch and the Executive Branch,
as well, about whether to reapprove some long-standing
emergencies.
Senator Rosen. Thank you. I appreciate it. Thank you, Mr.
Chair.
Chairman Peters. Ranking Member Paul, you are recognized
for your questions.
Senator Paul. I would like to have a stab at answering your
question about when do the emergencies arise, and I would
probably put it together, when did the emergency of a strong
central Executive arise? At some point, all the way back to the
Civil War, many would way the 20th Century. Many would say the
Great Depression. But without question the Executive has grown
in power, and Congress has diminished in power over the last
100 years. Part of that is emergency power and part of that is
many other things.
Most of the questions I get about a regulation of this
business or that business, we never voted on, and this has been
a big question now between the Supreme Court on Chevron
deference, whether or not we write the regulations or we just
give broad frameworks, and regulatory agencies write all the
regulations. But I would say it is a long-term trend and
emergency powers is part of that.
The argument has been made that this is a common argument
around here, and I disagree with that. Leave IEEPA out. Leave
everything else out because this is popular and we can get it
in. It is possible there are other really important things,
maybe more important, but they just cannot pass.
I would argue that sometimes something is so popular that
other issues that are related can be discussed and may well be
accepted. All three of you said that the internet kill switch
is probably the most important and possibly abused power. It
has not been used, but it could be so devastating that someone
could become dictator, basically. You control all the
communications in the country. You could become dictator in a
day, in a moment, in one Executive Order (EO).
We have that in our bill, for reform. We have it in there.
You also, in a degree. I think there is a lot of agreement up
here on getting rid of the internet kill switch. So why sell it
short? Let's not say we are only going to do this one thing.
Yes, the most important thing is changing from where we have to
override a veto to kill and emergency. We have to have a two-
thirds vote. That is way too high a burden. We need to get it
back to that it expires, and then we can then vote.
But let's not sell ourselves short. Let's have a real
robust discussion. Let's just don't say, ``Oh, I am against the
internet kill switch but this just isn't the time, so I am
going to vote no because we will do it some other time.'' Some
other time never comes. So now is the time.
The general category they all fit are emergencies. I would
argue, and I would agree with Ms. Goitein, the Insurrection Act
is a thousand times more potent and has the potential for
turning the place into military rule overnight that it is more
important than any of the four emergencies that we fix with
changes. I am for fixing it so all these emergencies expire and
that we have to reaffirm them. That is a great reform. But the
Insurrection Act is probably more deadly and more powerful than
anything we are discussing today. So we actually have that in
my reform bill.
I know I am not going to get everything I want, but let's
talk about it now. We are talking about emergencies. My
Insurrection Act reform would simply say a President cannot
send the military anywhere without the approval of Congress. I
am really not for sending the military domestically. I really
do not think the military should ever be used domestically. If
we are going and handing out water or preventing a foreign
invasion, or in a time of a hurricane, maybe.
Our soldiers are great but they are not trained to obey the
Fourth Amendment. Our police are, and even that is imperfect.
But our police know about the Fourth Amendment. They know they
have to get warrants. Armies do not get warrants. It is a
potential for a huge disaster.
So we should have a debate over the Insurrection Act. Maybe
we can do it in a separate hearing, in a separate bill, but we
can at least bring it up on this, and if I get a chance, that
is one thing that I will want us to vote on. Take a stand. Do
you think the President should be allowed to send the military
into our cities? I think no. The approval of the Governor is
not enough. I can imagine a Governor that makes a bad decision
too. That is two people that have made a decision to have
military rule in an area. Then if it does not expire it can go
on forever.
The Insurrection Act should also expire too. I think from
the very outset troops should not go in without our approval,
but even if that happens, it should expire in a short period of
time. The problem with giving 30 days for the Insurrection Act
and patterning it on the emergency is 30 days is a long time to
have troops in your cities. I would say none. I would not allow
troops to go in at all without an affirmative vote at that time
of Congress to allow troops to go in, and I would almost
assuredly vote no on that, for anybody.
We have police. The police are very well armed. The police
deal with riots in our cities, and that is the way we should
deal with it, because it is a tough job to figure out due
process for people and figure out the difference between
protests and riot and between violence and how we deal with it.
I would just argue let's be more open-minded to talking
about the Insurrection Act. I would say that the internet kill
switch, I think we can get some bipartisan support for just
getting rid of that. Most people are horrified. You tell any of
your constituents that the President could shut it down--and it
works both ways. The left may go home and say, ``Oh, Trump is
going to do this,'' and the right goes home and says, ``Biden
is going to do this.'' I do not want anybody to do this, and no
one should have ever been given the power to shut down all
transmissions.
Now I have heard from some people who say, ``Oh well, what
about sending out emergency broadcasts,'' or something. That is
not what this is. I do not think we need to have this power to
send out emergency broadcasts if there is a hurricane coming or
something.
Anyway, I would just argue for being more inclusive and not
limiting ourselves to only one thing. Even if the others cannot
pass. I may not get my way on IEEPA, but if we can only do four
emergencies and we leave all the other IEEPA out there, I am
skeptical if the sanctions work, but those who like sanctions,
vote on it. They are stronger. You can actually vote on it. Let
them expire in six months. The President does them. Let them
expire. We do not have to do each one. Bulk them into the
emergencies. Do all Russia's together, all China's together.
But then if you think sanctions work, they are stronger having
been voted on by Congress.
I am open to response to anybody who wants to argue with me
that we should limit this only to one thing.
Mr. Thallam. I would never.
Senator Paul. Don't politick it.
Mr. Thallam. But I would note, we speak of the 2019 reform
that we worked on in this Committee, that you both voted on and
participated in. It is kind of shorthand that we speak about it
as having carved out IEEPA, and I think in one sense that is
true. But it actually did pull in and remove the authority not
just as a sunset but removed the authority, pursuant to IEEPA,
for the President to unilaterally impose tariffs and rate
quotas. So that is a small piece. That is not everything you
are talking about.
Senator Paul. Senator Carper's piece was included in that?
I think it was an individual bill on that.
Mr. Thallam. I believe it was Senator Portman and, yes,
maybe Senator Carper. It was offered as an amendment and I
think it was wrapped into the base tax.
Now, that is not all of IEEPA. That does not address what
you are talking about. But it showed that you can at least pull
in some of the authorities that you are concerned about.
I just do not want my testimony here today to be thought of
as just do not touch IEEPA, just go forward. I am saying you
can. I just want to caution, just based on my experience here
as a witness to say that is what I experience. I am almost
certain that if we had tried not to carve out any part of
IEEPA, the bill would have languished--which we did not pass
anyway.
Senator Paul. You just realized the frustration on our
side. I get this all the time. I will have people on the floor,
and we will get to an amendment finally on the floor, and they
say we have agreed to have no amendments. Yours is a perfectly
good amendment, young man, and at any normal time we would be
for you. But this time we are against you because we made a
deal, no amendments. You know what I mean?
We just need to be more open minded and not limit
ourselves. I will not get everything I want. I will not get all
these things reformed. But let's don't preemptively say we
cannot. I appreciate your comments. Anybody else?
Ms. Goitein. Yes, I want to be very clear. I am not saying
let's do this one thing because it is here, we can get it done,
and forget about the rest. The Brennan Center is actively
advocating for reform of the Insurrection Act. We have a
detailed legislative reform proposal. We are actively
advocating for reform of IEEPA. We have a detailed legislative
reform proposal.
We are looking at the Communications Act. I am not entirely
sure that full repeal is the right solution there. It might be.
I think it is going to be important to look at whether some
very dramatically narrowed version of that power might be
needed in cases of, say, cyber attacks. Again, this is
something we are looking into right now. We might ultimately
support repeal.
But anyway, these are issues that I consider to be
incredibly important, top priorities. But I do think that on
the substance, in terms of what needs to be done with these
authorities, they have to be dealt with differently and
separately.
Now, I suppose you could say, let's just write the reforms
for each of those and tack it onto National Emergencies Act
reform legislation. But that work has to be done, and it has
not been done yet--the work of gathering the coalition, the
consensus, the markup that was held on National Emergencies Act
reform, the tire-kicking that has happened over these past few
years.
Senator Paul. I do not think it will be, but I would
suggest trying to come to a conclusion on the internet kill
switch. This is a chance. It might be five years. It might be
10 years. It might be never. When you have a chance, go for it.
You all said it was the most important power you would actually
remove, so come to a conclusion on it. If you want a carveout
for putting out PSAs on there is a hurricane coming--I do not
think you need that. I think that is probably done through
other legislation. It is actually mostly voluntary.
Believe it or not, people will do things voluntarily in a
crisis. Plus most people do not get it from government anymore.
I mean, your warnings are mostly outside of government for
emergencies.
But anyway, come to a conclusion on this because if we want
to bring this up in a month, we just do not want your Center,
which is on our side of this, to be against including the
internet kill switch. Just be open-minded if you can come to a
conclusion, and try to come to a conclusion.
On the Insurrection Act it is unlikely to be, but I believe
in having votes on stuff. I will have a vote on the
Insurrection Act, and I think it is different. It will not be
the same reform as the NEA. It has to be more strict than the
NEA because you are talking about putting troops in our cities.
I think troops in our cities should be a vote of Congress, no
matter how good the cause is. There are so many other ways to
deal with emergencies beyond having an army in our cities.
Ms. Goitein. If I could say one last quick thing. You refer
to the four emergency declarations. I think it is actually
three right now. One was terminated. So there are three
emergency declarations that do not relate to IEEPA that are
currently in place.
I want to be clear. Those three emergency declarations are
not the ones I am most worried about. It is the ones that have
not been declared yet. I do not think we should downplay the
significance of passing National Emergencies Act reform, even
if it does not address IEEPA, because there are untold
declarations that could happen in the future. As Mr. Thallam
says, it is the powers you have not thought about yet. That is
what we are preventing through this legislation.
Senator Paul. Mr. Healy, can you close this out?
Mr. Healy. Yes. I do not think anyone wants my advice on
the politics of it, and it is not worth much, frankly. But I do
see the merit in taking a broad approach to this and to deal
with at least a few of the biggest substantive concerns. Again,
discounting my political advice for what it is worth--it is not
what I am here to testify on--but I think we all agree that the
1934 Communications Act provisions are a huge concern, and I
think at this moment, when there is bipartisan interest in
emergency power reforms, that some of the more dangerous--it is
about what Satya said. The ones we are not thinking about are
important, but some of the ones that you would pick out, if
there is an opportunity to tackle them and reform those powers,
are also worth addressing.
Chairman Peters. One final question for you, Mr. Thallam,
and others can have their opinion, as well. The reform
proposals that are right now before us allow Congress to
approve an emergency for a set period of time. At the end of
that period then Congress can renew the emergency with another
vote.
My question is what do you think is an appropriate amount
of time for a national emergency to last before it needs to be
renewed by Congress?
Mr. Thallam. This was subject to some deliberation also at
the Committee when we were considering these. This is a
prudential question, and this is exactly the kind of thing that
Congress is supposed to figure out.
On some level, look, it is arbitrary, because you are
setting a time limit that is not correlated to the actual
emergency in that time. But I think anything more than 60 days,
you are going to a quarter of a year, 90 days, that is not an
emergency.
Again, I guess the point is less about what is the
appropriate specific time limit and more about Congress should
have to weigh in, and continue to weigh in if it is extended.
That is a policymaking muscle that Congress has not exercised
in a long time.
I think somewhere between 30 and 60 days is appropriate.
Chairman Peters. Other thoughts?
Ms. Goitein. I think 30 days, which is the amount of time
in most of these reform proposals. It is a sensible amount of
time. It gives the President enough time to implement at least
the first wave of whatever actions the President is going to
take in response to the emergency. It gives Congress time to
see how the President is addressing the emergency, how the
emergency is unfolding.
Then Congress can weigh in. If Congress extends the
emergency then it would go back to the usual yearly renewal,
but instead of the President being the one to renew the
declaration unilaterally, Congress would again have to approve
it.
Now some versions of National Emergencies Act reform also
include a five-year cap on the total amount of time that an
emergency declaration could be periodically renewed by
Congress. The idea behind that is to prevent this phenomenon of
permanent emergencies. Five years into an emergency, it is not
an emergency. It is a new normal. Arguably it should be
addressed through permanent authorities. If existing emergency
authorities are not sufficient, then Congress should be passing
new ones.
So that is another feature of some of these reform
proposals that is worth consideration.
Chairman Peters. Very good. I would like to thank Ranking
Member Paul for holding this hearing with me here today, and I
would also like to thank each of our witnesses for joining us
and sharing your insights. I think it was a very fruitful
discussion.
Certainly expanding congressional oversight of national
emergencies is absolutely critical to ensuring a healthy
balance of powers, as envisioned by our country's founders. As
we heard today, Presidents have very broad authorities that
could be misused. At the same time, the Federal Government also
must be able to rapidly and effectively respond to various
types of emergencies. But as I believe our three witnesses
explained today, there are some commonsense reforms that would
strengthen Congress' role in exercising oversight of these
emergency powers.
I certainly look forward to working with Ranking Member
Paul and other Members of the Committee to advance legislation
that incorporate the bipartisan reforms that we have heard
about today, and I would say nonpartisan reforms is probably a
better way to characterize it, and we will be working
diligently to make that happen in the coming months.
The record for this hearing will remain open for 15 days,
until 5 p.m. on June 6, 2024, for the submission of statements
and questions for the record.
This hearing is now adjourned.
[Whereupon, at 11:05 a.m., the hearing was adjourned.]
A P P E N D I X
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