[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

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

                                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

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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

                                 ------                                
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

                              ----------                              


                        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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Healy appears in the Appendix on 
page 67.
---------------------------------------------------------------------------
    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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