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tv   House Judiciary Hearing on 1976 Natl Emergencies Act  CSPAN  March 7, 2019 3:31am-5:36am EST

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about u.s. spending happens -- habits. join the discussion on thursday morning. here is some of what we are covering thursday on the c-span networks, live coverage of the house begins at 10 am eastern, continuing debate on campaign finance rules and voting rights, c-span 2, the senate considers the nomination of earl murphy to the circuit court, and john fleming. life hearings on c-span 3, 10 eastern, senate foreign relations subcommittee hearing on venezuela, and at 1:30 pm, justice samuel alito and kagan. next, three constitutional most birds -- law experts and in owner of a house in the
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texas border, give testimony on the order wall, the 1976 national emergencies act that the president used as the basis over his -- for his declaration, this is just over two hours. good to have the gavel. the committee on the juice three -- judiciary, in the democrats name again, it will come to order, declaring recesses at
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any time. will come to everyone, to today's hearing on the national emergencies act of 1976, i will recognize myself one opening statement. i'm pleased to convene the first hearing of this subcommittee on the constitution, civil rights and civil liberties, i look forward to working with the ranking member, mike johnson, and other members of the subcommittee on the many challenging and pressing issues we will be facing in the months to come. it is fitting that it will focus on the national emergency act of 1976, its implications of the constitution's design, a governmental structure defined by checks and balances, the separation of powers, -- powers, from the mind of james madison. article 1, the power to legislate, including appropriating funds. as every great -- grade school student, high school, college student, congress writes the
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laws, the president's job is to enforce them. the congress has the power of the purse, if the president wants to pay for something, he needs to get funding from the legislative branch, that is article 1, unfortunately, president trump has undermined the basic principles, after making a campaign pledge to build a wall along the southern border, 2000 miles long, and promising that mexico would pay for, which was simply a device that his campaign folks gave him to remember to bring up the issue, and later it morphed into a policy, he was met with a dose of reality, that mexico is not going to pay for, and neither was congress. polls show that the american people do not want to pay billions of dollars for a vanity project when immigration is at historic lows, it would do nothing to stop drugs being smuggled in through ports of entry by 90% amount, and
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families fleeing violence need any -- need a orderly system. and there are not women with masking tape, and sex trafficking into the country, that is fantasy. that is why congress rejected the $5.7 billion to build a border wall, he did not try to get that while his party controlled both parties of -- houses of congress. the present situation is that the president doesn't like not getting his way, he invented a so-called emergency to divert funds to build his wall. as was written, one of our witnesses will explain, this is the only time since the passage
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of the national emergencies act that the president has evoked a national emergency to go against the express wish of congress. using the exclusive power of the purse, it is not up to using the taxpayer money to seize private property for a project that congress is not authorized. the supreme court noted that when harry truman tried to take over the steel industry during the korean war, he could not do it, it was a illegal use of the power. congress as a coequal branch cannot be silent in the face of this power grab, the house vote, to terminate the so- called emergency, the constitutional principles of of party loyalty, and presidential fealty, when they take a vote on this measure in the coming weeks in the senate. i believe that president trump's national emergency declaration is legally instinctively without merit, it
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also brings up questions about viruses delegation of emergency authority, what is this act, does it need to be amended? it was enacted in 1976 in order to constrain the use of presidential emergency authority, it does not give the president powers, but sets forth the process he needs to follow, and that congress needs to follow. the law has not worked as intended. president trump and his supporters believe that because the nea law setting out a procedural framework only, has not defined what a emergency is, the president is free to invent one whenever he wishes, all of king george. -- a la king george . as to the underlying laws, a lot of scholars and commentators have pointed out that we in congress ever was lost of how many authorities we have granted to the president,
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or that they remain warranted. describing some of those laws for us, many of which have never been used, nevertheless, they remain on the books, and as jackson said, they claim a lie like a loaded weapon. after president trump began talking in late 2018 about declaring a national emergency, lawyers and scholars try to figure out which laws he was talking about, the presidents on budget director told the press about how he and his staff combed through the u.s. code looking for hidden emergency authorities or other loopholes that allowed them to move money around, the american people deserve better than that, he can exploit loopholes, to raid funds that have been allocated by congress for other purposes, particularly when congress has acted at the presidents request, the
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president was going to accept what congress gave him, and said no after hearing from talk show radio host, shut down the government after congress would give the funds, congress voted together to give them what funds they thought were appropriate, and then he declared a national emergency. he declared congress null and void. i look forward to hear from the witnesses, who bring a range of perspectives, i hope we have a fruitful discussion, not only about president trump's actions, but whether we as a congress need to amend this law, so that they are used only in true emergencies and not a end run around the constitution. the distinguished ranking member, johnson, from the go tigers state.>> thank you, i appreciate you and all of our colleagues, look forward to looking with you on the subcommittee, thank you to our witnesses for being here with us, today's hearing takes place at a time in history in which congress has increasingly
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abdicated its legislative powers over many decades, it's like having a hearing on puddles in the middle of a hurricane. i would like to use my time today to take a step back and explore how the polarization of congress has drawn both parties away from our constitutional core, what has been referenced, article 1. as a former historian of the house of representatives have said, the framers were committed to a belief that a representative body accountable to the citizens was the surest way of maintaining rights, is that of supremacy, they failed to flush out the executive and judicial departments of the constitution, leaving that task to congress, ensuring that the legislature would remain the controlling governmental structure. with the separation of powers, so carefully designed by the framers of the constitution, has been greatly obscured. let's take a look at more
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recent history. consider the last five years. the first section of the first article of the constitution provides that all that slid of powers herein granted shall be vested in a congress of the united states. the obamacare statute, clear statutory guidelines, including the mandates, the statute imposes, the amendments made by this section shall apply to months beginning after december 31, 2013, the obama administration universally and unilaterally tried to rewrite the law, not through representatives, but things like blog posts, removing penalties for employers who would otherwise be required to provide insurance. through regulatory fact sheets, creating a entirely new category of businesses, exempting them under the law. things like letters, which specifically explained that people would have to have their health insurance terminated under obamacare, in violation
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of his promise, if you like your healthcare plan, you can keep it. and suspend the insurance requirements for this one letter alone i've referenced, suspending the application of eight key provisions, it was done to delay the terrible consequences until the next election cycle. it admitted to using federal taxpayer money to pay subsidies to insurance companies under 1402 of the affordable care act, even though appropriations were never made by congress, in violation of the clause that states no money shall be drawn from the treasury, but in consequence of appropriations made by law. when it said misted the 2014 budget, the obama administration recognized he could not make section 1402 offset program payments to insurers unless and until congress specifically appropriated funds for the purpose.
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july 2013, the senate appropriations committee declined to approve the request, neither the house nor the senate ever adopted a bill, and no bill containing a appropriation to fund the section was presented to the president for his signature or veto, congress did not appropriate funds for 14 024- 2015, if the ministration went ahead and funded the insurance subsidy program anyway. that was standing the lack of any appropriation, in obamacare, or fiscal year 2014 appropriations bill, the obama administration unilaterally made payments to insurers in 2014, and continued making them thereafter. one of the witnesses here today, challenging the rank unconstitutionality of those actions, on behalf of the house of representatives, leading to a ruling, neither the president, can authorize appropriations,
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the assent of the house is required between -- before money is spent, a check on the otherwise unbounded power of the executive, the genius was to limit the executives power by a valid control over the funds in the treasury, disregard for that works a grievous harm in the house, deprived of its rightful place under the constitution. judge collier ruled in favor of the house on may 12, 2016, and found that the obama administration violated the constitution, the trumpet ministration ended that unconstitutional funding program, november 2014, president obama unilaterally and unconstitutionally suspending immigration laws for millions of people in the country illegally. the president urged congress to enact a statute to create a program under law but congress didn't, even when his party controlled both houses, despite claiming it was urgent, he did not act unilaterally until
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member 2014, whether he delayed action for political reasons, he knew the actions, he did take were unconstitutional. in which he himself directly address the issue, the lack of constitutional authority to do what he did, he recognized it as well. he said in his own words, he changed the law. all of that happened without protest from the other side of the aisle, even though both sides worked together under the same capital dome, and the same legislative powers. here we are having a hearing on president trump's exercise of clearly delegated authority under a statute duly enacted by congress, we can debate the policy merits, but there is no doubt that the national emergencies act of 1976, and related statutes constitute a clear delegation of parts of the appropriation powers to the president, subject to the presence -- president's
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declaration of a national emergency, left to the president to define. there is a crisis of the border, everyone has acknowledged that, a federal statute duly enacted by congress, it is time to drop the politics and pick up our principles, we in congress must rediscover the principal basis for our article 1 powers, until we do that, we will move in partisan fits and starts, one day in this direction, and then we will discover we are moving in circles down a whirlpool that erodes our legislative powers, spinning with increasing speed in smaller and smaller circles, i hope this hearing can help right the ship, and develop a principled anchor as congress moves ahead, i look forward to hearing from our witnesses today, and i yield back. >> i think the gentleman from louisiana, i recognize the chairman of the full committee, jerry nadler. >> thank you for convening this hearing, i would like to think
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the witnesses were peering here today, i am heartened by the fact that their opposition to president trump's emergency declaration comes from across the political spectrum, this debate should not be about partisan politics, it should be about protecting a principal fundamental to our constitutional democracy, namely that the chief executive cannot unilaterally re- appropriate funds. article 1, section 9, unmistakably clear, no monies should be drawn from the treasury, made by law,", as in trump violated that, when he invented a so-called emergency as an excuse to build a wall that congress explicitly rejected, the only emergency is the fact that congress refused the president what he wanted. that kind of bad faith action by the president is a violation of his oath of office, to defend the constitution and faithfully execute the law.
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and the emergency law he invoked allows the military to redirect funds only if the emergency requires use of the armed forces," they can be used only for construction projects that are necessary to support such use of the armed forces,". it was supposed to be used for actions like building airfields of barracks, a wall cannot possibly be necessary to support a military operation, because the posse, taught us act specifically -- posee comitatus expressly forbids that military use. they are doubly unlawful, no real emergency, and even if there were one, the president could not redirect military funds for a purpose expressly prohibited by law to the military. the house passed a joint
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resolution to terminate the so- called emergency, a important first step in reasserting congress's role as a check for president trump's unlimited appetite for power. i hope my colleagues in the senate, particularly those on the other side of the aisle, will take a look at the bigger principles, including their own role in the constitutional system, when they go to cast their votes. and i think it was senator rubio, if today, the so-called emergency, is at the border, tomorrow, the emergency could be climate change, or guns. we have a gun emergency in this country, what would you say the president declared an emergency and said we are going to collect all the guns the country, and melted down, the way they did in australia? i would say that is unconstitutional, if people uphold this emergency power now, they would have to say to be consistent, that was a proper use of the emergency powers. no president should have that kind of a limited power, that is is -- that is what is at
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stake. it is more about the legality, his decision should give us great pause, those authorities go beyond the ability to redirect funds in order to build a wall. the national emergencies act, regulating the process by which the president can declare an emergency was enacted in 1976 to curtail certain abuses of emergency authority that had come before, it provides a general framework by which he can declare national emergencies, and wish congress can terminate them. it allowed congress to terminate an emergency by majority vote in both houses. in 1983, the supreme court held that congress can't veto actions taken by the executive by majority votes, instead, it has to pass a new law, which means it has to get the president signature or pass the
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law with a vetoproof majority. consequently, in 1985, congress amended the national emergencies act to be consistent, but in doing so, congress abdicated a substantial amount of constitutional power to constrain the president. the bottom line is, we have to convince the president to sign a joint resolution, to terminate his own emergency declaration, or a vetoproof majority, very difficult. house and senate should vote to terminate. take the politics away and this would not be a possible. whether we are addressing this so-called emergency or a future emergency declared by another president, it should not-- delegated to address urgent circumstances.
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there are real statures that give the president a broad range of authorities including the ability to bar exports are potentially-- all of which could be subject but to abuse by the president who not ask accept the law. the president should be allowed some type of discretion during emergencies but emergencies cannot continue forever. to shift the burden of inertia, we should consider legislation that would set a time limit for emergencies requiring that they automatically expire after a period, say 10 days, unless congress ratifies the emergency declaration by law. the sunset provision, and i emphasize it should be in the days, not the weeks, would restore responsibility to change the law to where it belongs. we should also consider the separating out emergency statutes, separating emergencies and which ones describe those responses in the executive branch which do not
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involve truly emergency circumstances. i think the witnesses for their participation and look forward to their testimony. >> thank you mr. nadler. i'm going to introduce the witnesses but i would like to introduce them individually before they speak rather than as a group. i think before we introduce this team we are going to ask all of the witnesses to stand and be sworn as is accustom in our committees. do you swear under penalty of perjury that the testimony you are about to give is true and correct to the best of your knowledge information and belief? thank you. >> parliamentary inquiry. >> yes mr. johnson? >> i think we left at the
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phrase so help me god. >> can we let the witnesses do it again for the record? >> if they want to do it but some of them don't want to do it. i don't think it's necessary and i don't want to assert my will. >> it has been part of our tradition for two centuries and i don't believe we should abandon it now but i would ask the witnesses if they would choose to use the phrase? >> mr. chairman, mr. nadler, if any witness objects i should not be he should not be asked to identify themselves. we do not have religious tests for office of anything else and we should let it go with that. >> we will proceed with introducing the first witness. >> noted for the record. >> miss elizabeth goitein is the author of many reports running live national liberties and extensive peace in the atlantic title, what the president could do with he declares a state of emergency.
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before coming here, ms. goitein served as counselor and the chairman of the constitution senate judiciary committee and as a trial attorney in the department of justice. ms. goitein received her degree from yale law school and the court of appeals for the ninth circuit she received a ba in history from yale and a masters of music degree in oboe performance at the juilliard school. welcome, and we would like to hear your testimony. you have five minutes to give us. >> ranking never johnson and members of the committee, thank you for the opportunity to testify. pres. trump's declaration of a national emergency to build a wall along the southern border is an unprecedented abuse of emergency powers. the president declared this emergency for the stated purpose of getting around congress, which has repeatedly refused his request for funding . no other president has used emergency powers in that way. emergency powers are not met as
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an end run around congress. they are a standby authorities that congress has passed in advance recognizing that true crises often unfold too quickly for congress to respond in the moment. they are a medical directive which a person specifies what action a doctor can take in an extreme situation where the patient may not be able to make her wishes known. a president using emergency powers to thwart the will of congress in a situation where congress has had ample time to express that will, it's like a doctor relying on an advanced directive to deny life-saving treatment to a patient who is conscious and clearly asking to be saved. congress passed the national emergencies act in 1976 to try to prevent abuses of emergency power. the law provided that states of emergency would expire after
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one year unless congress renewed them i'm sorry, unless the president renewed them. it allowed congress to terminate states of emergency without the president's signature using a so-called legislative veto and requires congress to meet every six months while emergencies are in effect to consider a vote on whether to intend them. the law has not been the check that they are intended. the year was supposed to be the default but has become the exception. he has clearly renewed the state of emergency for years on end. in 1983, it was held that legislative vetoes are unconstitutional and requires a joint resolution signed by the president or passed over the veto for congress to terminate a state of emergency. congress simply ignore the requirement to meet every six months to review existing emergencies. it did not include a definition of national emergencies. the legislative history makes
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clear that this omission was not intended to give the president unlimited discussion. the fact remains that there are no clearly articulated standards in the law. recognizing the nature of this emergency declaration the house has vote to terminate it. the senate should do the same and if the president vetoes the bill congress should override it. all of the witnesses here today agree on that point. the court should also plead their cons-- play their constitutional role. while it gives the president tremendous discretion, even the broadest of discretion can be unlawfully abused. we have now seen how permissive the scheme can be exploited. the next time, the stakes could be higher. the center has catalogued 123 statutory powers available to the president when he declares a state of emergency.
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these include potent authorities including the power to take over or shut down communications facilities, to freeze american bank accounts, to detail members of the armed forces to any country. congress should act now to pass commonsense reforms that preserve the flexibility in a true crisis while safeguarding against abuse. i made six recommendations in my testimony and i will flag the top two. congress should clarify that an emergency involves significant changes in factual circumstances that pose an imminent threat to public health, public safety, or other national interests. the definition would leave the president with plenty of discretion, just not a blank track. track check. second, congress should vote that an emergency should end after 30 days if present if
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they vote to not continue it. this would again give access to authorities when he needs them the most but when congress has had time to act, and congress can act very quickly in the face of real emergencies, at that point it should be up to congress to decide whether emergency powers should be used. in short, it's past of the time for congress to reassert itself and its constitutional role as an equal branch of government and again, that is something all the witnesses here agree on. >> thank you ms. goitein. now we have missed nayda alvarez who is a teacher, a mother, a grandmother, and a border landowner. her family has lived along the border for at least five generations. she has received letters from the government indicating its intention to take her property for the construction of a border wall that would cross her backyard. five minutes, and i think you are close. yellow you are close to ending, and read you are over.
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>> thank you miss alvarez. we appreciate your testimony. >> good afternoon. thank you chairman cohen, ranking member johnson and members of the committee for inviting me here to share my story. items nayda alvarez, i live in stark county texas. i live in an area that extends to the rio grande river which forms the border between texas and mexico. i'm here to tex if i that there is testify that there is no emergency and there is no good reason for the government to take my property to build a wall in my backyard. my family has lived on land around the room along the rio grande river for five generations. i have lived on the land for more than 40 years. my father lives next to me alongside the land where my grandfather lived. we still use a wooden corral built by my great-grandfather for keeping farm animals. my grandchildren nieces and
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nephews play in the same places where i played as a child along with my siblings and cousins. in more than 40 years of living on the border i cannot remember everything ever seeing migrants come across my family's property. to do so they would have to cross the river and would have to climb up the bluff that runs alongside the river at the end of my property. the river and bluff create a natural barrier on my family's property, a natural barrier between mexico and my land in the united states. because it's mine and my family's property next door, it is not an area where migrants cross the border. we were surprised in september 2018 that we received letters from customs and border protection asking for permission to come onto our land to survey and take soil samples in anticipation of building a border wall across our
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property. we did not grant permission. in november 2018 another letter was hand delivered to us. in january 2019 we received a third round of letters stating the united states government is going to take us to court to take our property to build a border wall across our land. the government sent a maintenance road to be constructed from the back of my house. it is a 150 foot wide enforcement zone between my house and the river but the river is only about 200 feet from my house and the land closest to the river is unstable and subject to erosion. how will my house survive? in january, using the telephone number provided in the january letter, i called a us army corps of engineers realty specialist to ask how they would possibly fit a border wall enforcement zone between
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my house and the river. the person i spoke to told me they were going to build the wall if they got the money in 2019. even if they had to squeeze it in. it will never be the same. i will lose my entire backyard and will be staring at a wall right outside my back door and windows. my family's property next door where we enjoy family gatherings , raise animals, and enjoy nature will be divided by the wall. because congress would not appropriate the funding to build a border wall, the president declared a national emergency to try to build the wall anyway. the president and congress-- runaround congress is unlawful. as public citizens have
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explained in a lawsuit filed on the president the same day he issued his emergency declaration , my lawyers will argue the legality to the president's actions but the bottom line for me is that the federal government is threatening to take my land to fulfill a campaign promise but without any need. there is no invasion in starr county. no emergency. no need for a wall across the land. i live on a peaceful stretch of property in south texas in the united states of america. no drugs, no gangs, nothing from across my property. there is no need for a wall on our land. we should not have to sacrifice our land to a slogan. we will lose land, privacy, and our way of life.
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thank you for granting me this opportunity to testify. i'm ready to address any questions you may have. >> we appreciate your attendance and the testimony. mr. jonathan turley, another individual with a louisiana background, although go tigers, the professor of public interest law and the george washington school of law. recognizing scholars ranking from constitution law to legal law. in addition, he is the author of 3000 academic articles and served as a council for many noble cases. among that was his representation of the house and the constitutional challenge made by the obama administration with respect to the affordable care act. in 2080 he was giving an honorary doctorate of law for his contribution to several civil liberties. we appreciate your attendance
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>> it's an honor to appear before you to talk about this very important issue involving the national emergencies act of 1976. as some of you know from my background, i am an unabashed and unapologetic scholar and i tend to favor congress in fights with the executive branch. indeed i often appear before members of the committee like a broken record warning congress that it is frittering away its authority to expand executive power. like my testimony, most of mine have been ignored. the national emergency act is the arch type for this long acquiescence of this body. originally portrayed as an effort to restrict presidential power, it was ultimately passed
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as an unfettered rant of authority to allow declarations to occur with little checks of his body this body. congress has also tied that type of unfettered authority to the history of appropriation that often place few conditions on funding given to the executive branch. the result is the long and frankly irresponsible history that led us to this problem. although i disagree on a policy level with the declaration in this case, it doesn't matter. this problem is the making of congress, not the president. courts are not designed to protect congress from itself. the national emergencies act was a case of snatching defeat out of the jaws of victory 20 years earlier, this body prevailed in youngstown and was
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one of the most important rulings ever to come down from the legislative branch. justice jackson warned that the type of emergency power being claimed by pres. truman would be a pretext for an authoritarian rule that emergency powers tend to kindle emergencies. congress responded 20 years later by creating a law that allowed that very problem to occur. there's no advantage that the-- there's an old adage that the road to is paved with good intentions and if that's true this body past the nea on the way. it wanted to restrict the president's power first but through a series of amendments that i go through, what came out was basically an unfettered grant of authority. the result has not been surprising. we've had more than one national emergency declared since the nea has passed.
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it would be funny if it was not tragic for this body and its inherent constitution. even express provisions in the law like this body meeting every six months to review emergency powers, simply ignored. the body has not done it once because it was too inconvenient apparently, or burdensome. if you sense a threat of-- if you sense frustration, you are picking up the truth about how i view this problem. congress created a law that gave unfettered authority. congress can rescind the law and rescind emergency declarations. although they are unlikely to do it, there are possible challenges to the current declaration by pres. trump one is that's source of authority and one is the source of the funding. most of the multistate complaint, i'm afraid, is not a
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very promising attack on this problem. they are unlikely to prevail. i can put it no more bluntly than this. this is a national emergency that the president says it isn't because you gave him that authority. that may seem superficial and simplistic, but the nea is superficial and simplistic. i don't see how a court is going to substitute its authority as to what an emergency is when the laws can't even define it. as for the source of the funds, there is simple math that leads to a simple problem. this body gave the president roughly $1.4 billion. we can debate as to how that can be used. the administration has identified multiple sources that would bring available funding to $8 billion. even if the court was to join two of those different sources of funding it would be over the $5 billion billion dollars that
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the president originally sought. it is unlikely in the long term that a challenge will stop this construction. let me end by saying that it was once said that if my fellow citizens want to go to i will gladly help them. it's my job. well, this body has been helped for a long time in you are not going to be rescued by a federal court from that direction. it will send you a longer path toward institutional obsolescence. i hope that this hearing, instead of focusing on the lawsuit which i think is not particularly promising, will look at correcting this law and regaining the authority that this body unwisely frittered away in 1976. thank you. >> very appreciated. finally we have stuart gerson and his practices centered on providing representation to
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clients. he has had a long and distinguished career acting as acting and assistant attorney general during the administration of george hw bush and serves on the transition team of pres. george w. bush. he received his jd from georgetown university law center and a ba from consulting estate. he is not as commonly on television but started with a team of tribe and gersten tv personalities. >> thank you mr. chairman, chairman nadler. mr. chairman, ranking member johnson, and i especially give a nod toward miss escobar his home county is my client in the litigation that we are sharing, and which doesn't bear the characteristics criticized by prof. jerrold nadler.
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i'm a lifelong republican. i've been a republican longer than some of you have been alive. and, i'm a conservative republican and enjoy the support of a lot of conservatives with respect to the position i'm taking today. indeed, i take that very position, if i agreed with pres. trump with his desire to build a border wall, i don't. i'm a tech wizard and i know a lot of what has happened since vietnam creating technical means and i like those a lot better. but, i don't favor open borders and i don't know anyone here that does either. i'm here is an advocate for the constitution, and in fact, agree with 95% of everything i've heard from everybody so far. i expect that to continue. mr. johnson, prof. turley and i disagreed to one point and that is with respect to the ability of a judge to determine an emergency. in terms of the history, we don't disagree at all. i was as much of a critic as
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acting congress by the executive in the previous administration as i am presently. even if i agreed with the president i would have the same position. your job is to revisit the act, and i am hopeful and expect that you will do it. and in so doing, that congress will stop acting like a parliamentary body and act as what james madison and alexander hammes and and the other framers intended which was an adversary to the executive branch. this goes back even in my lifetime to the 40s and has been a continuous trend. i say that to someone who represented the first bush administration arguing all the way up to the supreme court about the president's war powers. it's different from what we have here but certainly the entire case in prize out for the definition of what
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constitutes an emergency, where a president can act, and for how long. it's why i believe a neutral will be able to decide this question and, it looks like a turducken if i can give you a little louisiana experience. slapped together and leave eliminating emergencies that went on for years, but the reason i think a court will be able to do that is that i don't think you can be the referee of your own game. i don't think using just the textural tools that i believe are proper when i support the traditional judicial nominees, which i generally do, that emergency requires a definition. it's got to be unplanned, sudden, that requires action and a timeframe to short for the political political branches to confer. that's similar to what other
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witnesses have had to say. one can argue about the language but i think we know what an emergency looks like when we see it, if i can paraphrase justice stewart. -- stuart. that's what i'm asking it to do as far as litigation goes and i'm asking to challenge, i'm comfortable with the position we are taking and none of us view it as political. is simply that we believe that it is constitutionally impermissible for the president to take action in what really is a nonemergency when the congress has already spoken and told him not to do the very thing that he's doing. like in a sport, the constitution intended there to be winners and losers. what should have happened is that congress should not only
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have had the last word but the definitive word. i respectfully ask that my prepared testimony be made part of the permanent record of this hearing. thank you. >> all of your testimonies will be part of the permanent record and we appreciate your testimony. we will proceed to the five minute rule for questions and i will begin myself. miss goitein, you gave us two of the ways you shut thought we should change the law. the first had to do with clarifying a significant change, and the second was the idea that it ended after a certain number of days, 10 or 30 or whatever. you had some others in your testimony. could you go over this quickly? and then i would like to ask mr. turley to testify on your proposals. >> my third recommendation was that congress could renew states of emergency on a periodic basis up to five years. after that, it can no longer be called an emergency. it has become a new normal and
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at that point congress should be passing permanent laws in order to address this phenomenon rather than pretend that it was an unforeseen circumstance going on. the fourth recommendation that i made is right now under the national emergencies act, when the president declares an emergency, he has access to any of the statutes that are available during a national emergency even if they are irrelevant to the nature of the emergency. there is no requirement that there be some kind of connection. a few of those laws have some additional language. most of them do not. there's no reason for that and it invites abuse. the law should clarify that emergency powers can only be used to address, for the purpose of addressing, that emergency and not for any other emergency. fifth, the law should make
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clear that emergency power can never be used as a run around congress. if the current congress has had an opportunity to consider and vote on the circumstances that led to the emergency declaration, the president cannot introduce a national emergency to get around what congress has decided. >> finally, there should be transparency in terms of how presidents are using emergency powers. right now the president has to report every six months on expenditures. these reports have been filed since 2003 and have gone missing. i think congress is getting them but they are not topically available. there should be a requirement that it be made public, and that reports not covered just expensive but the details on what activities and programs have been put in place were necessary. >> let me ask you this. on your first recommendation it was only there exists
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significant change in factual circumstances that pose an imminent threat to police powers. and the president could say that there is factual change, and if he did such, in place with the current circumstance. >> i believe the only change he has pointed to is that there are more families coming to the border seeking asylum. these individuals are coming to make claims that they are entitled to make under the law in seeking entry into the united states. that's not contributing to the problem of unlawful migration which was cited as an emergency. he changed in circumstances, an unforeseen development of which is what an emergency is. other than that when. >> maybe you are right and i'm missing an official declaration in his verbiage, he has talked about drugs pouring in and the women being bound and taped and
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you name it. that is something new, i think. so new that it doesn't exist. >> it's new that he's talking about. i think what we have to understand is that a problem is not the same as an emergency, even a very serious problem is not the same thing. emergency has a meaning and is not that obscure. it does relate to unforeseen sudden changes in circumstances that require an immediate response. most of the things the president has talked about, drugs, border crossings, crimes. if you look at the governments own statistics, they are not getting worse. if anything they are getting better. >> for pet professor turley, do you have other recommendations? >> i haven't look closely at the recommendations, but i would put up cautions that you should not try to write with such specificity that you turn this into an endless form of
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litigation and debate over the meaning of what is the problem and what is an emergency. the key failure is that this body does not have to take an affirmative act to allow an emergency declaration to continue. i say in my testimony, originally the bill had that in it. congress did the right thing and said that after a certain period, we have to affirmatively agree that there is an emergency for it to continue. without the agreement, it is a dead letter. that could solve a lot of the problems and you would not have to get into all of the weeds as to what type of conditions are going to trigger what type of conditions as long as the body had to affirmatively agree that an emergency existed. you could address many of the issues that my co-witnesses identify and i agree entirely
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that they are relevant factors to consider. >> thank you. >> i'm not sure that life can continue well without this act altogether because one starts with the constitution but speaking to the act, and you are here to amend it, remember that its purpose was to clear the deck of a bunch of emergencies that were one decade-old and or littering the field. remember your fundamental power is the power of the person. what you want to be do it, it seems to me is by amending this statute, and everybody agrees about this, but you need a clear plain english definition of what constitutes an emergency. what you are saying is we are giving license to the executive to carry on without intervening to cut off the activity by taking action with relationship
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to finance. what your powers are. you are thinking about process when we do this and we start with the constitution. first and foremost, i think a clear definition, some practical time frame should be attached to that and the rest should be considering how this will actually work in practice and how congress can play a meaningful role, particularly the house which has this ability to resonate to-- revenue bills, how that will work in practice. that should not inhibit a president, for example, with respect to the agencies of exercising war powers or foreign affair powers assuming that there is an emergency. avoiding those kinds of problems that the gulf resolution created with historical reference and a look back with some common sense.
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you can simplify this and make it clear to find what your role is intake and activist role given the limited but profound power that the house of representatives have. >> thank each of you. we will come back to this i'm sure but i will recognize ranking member mr. johnson. five minutes. >> thank you jimmie johnson, mr. turley. can you explain how nonappropriated funds from healthcare insurance differs from this situation of using statutory authority? >> there's a significant difference. i was a bit alarmed when i saw members talking about using the precedent that we created to challenge this declaration as a body. in my testimony, i strongly discouraged that. one of the reasons i took the case is that i have been a long believer in legislative standing. i believe a believe a lot of the problems that we have is
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there are some violations by presidents that cannot be challenged in court. there are sort of blind spots and legislative standings this body worked for decades to get a court to recognize legislative standing and we've prevailed on that. quite frankly i don't think this is a promising litigation and i would not put that precedent at risk. the reason it's not the same situation is what pres. obama did as he described. they came to ask for funding for insurance companies under 1402's program. in this body, for whatever reason, they declined to do that. then the administration declared that this would be an implied permanent appropriation, much like the ones that pay citizens their tax refunds. congress requires the irs to come to you every year and say this amount of money we want to give citizens and you give a permanent appropriation like an
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open credit card. that is something the body does not like to do unless it seriously looks at whether it wants that type of appropriation. what the administration said is that we will pay this directly out of the treasury and that's what judge collier said was a no go. she said this is unconstitutional. congress never said that and this would really destroy the power of the purse. that is not what he's doing. you can disagree with the policy but he's acting under a federal statute that gives him this authority and he is using appropriated funding. i actually think the challenge on the source of the funds could potentially have a positive ruling for the challengers on some, i doubt on all of the funds. that is a statutory issue that we can debate. i talked a little about it in my testimony but that is very different from what happened in burwell. what i encourage this body to
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consider is regardless of where you come out on this, there are ample lawsuits pending in the are being well litigated including by some friends of mine. let that happen. members can come in, but protect the president that we were able to win in burwell. >> thank you for that. >> to what extent does the supreme court consider presidential rhetoric when they are interpreting statutory authority? will they consider a legal of provision or look at comments made in the press? were a member of pres. obama said if you like your healthcare plan you can keep it, but could people have sued even if they didn't have that right under the statute itself? >> i may create a course on presidential rhetoric and its use in constitutional interpretation. i have to say that i disagreed with the ninth circuit to the degree in which it utilized tweets and campaign statements reaching this decision on
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immigration. i thought the first order was poorly written, poorly defended, it was really a product that was shocking. ultimately, the supreme court agreed with the administration on the underlying issues. that opinion recognized the inherent authority of the president on the border. usually courts are reluctant to go outside the record to read the motivation behind a declaration or for example, the motivation of this body in legislation. they tend to try to stick to what you say in your official documents and do the same with the president. i understand that the president certainly stepped on his line when he talked about the fact that he really didn't have to do this. but i do not believe that's going to be determinate, and i'm not sure it's relevant. >> the tweets cannot alter an order or a statute. my words, not yours. >> miss alvarez, i had a
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question and i don't mean this disrespectfully, you described your property and said it some part it used a wooden corral and you've been there for a number of generations and there's a bluff that separates the river and your property. you said conclusively that there has never been in your words, no drugs, gangs, or terrorists. the question is do you have video surveillance of that length of your property? >> not of the whole property, or the part where my home is and my parents homes, yes. >> does someone monitor it through the night 24 seven? the question is, how can you be certain that no one has ever crossed your property illegally? >> it does capture border patrol people going through my property. and, it sends alerts, so therefore if somebody else would be passing through there, i would get an alert. i haven't gotten any. >> thank you. i'm out of time.
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>> we now recognize the chairman of the committee, mr. nadler. >> i unfortunately agree with you mr. turley that courts are reluctant to question the presidents honestly or any presidents honestly honesty or organizations. on this one, i think as for the use of military funding, he wants to move military funds to have the border guarded by building a wall with military funding. it specifically says the military cannot be used to enforce the law. so how can you justify use of military funding for military purpose for the military purpose that is denied to be a military purpose by law?
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>> that's an excellent question and will be an issue the court would have to deal with. i have to say i'm skeptical because the military has been used on the border in the past presidents have called the military to the border. it's a classic use of the military. >> it's a challenging question? >> not that i recall but i doubt the court is going to seriously debate whether the authority president has an authority to send the military to the border. your point is a perfectly good one. to the extent they are doing law enforcement duties, that is an immigration-- >> immigration law is one of the duties. drug smuggling, what would they be doing that would not be law enforcement duties? >> the border is also a national security border. is a classic use of the military. they patrol the border. >> in so far as they are talking about drug smuggling and illegal immigration, that is domestic law enforcement.
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>> i would say the border protection is a mix and the question is, do you expect a federal judge to say you cannot order trips to the border to deal with border security? >> no but i expect a federal judge may be will to say you can't-- the border to deal with drug smuggling or legal immigration. 1840 it was not that long ago but yes. >> i do think that this body can correct the problem and create clarity on the use of that. it doesn't currently exist in the statute. >> which part of the? part of it? on the use of military forces if we enforce domestic law, or is that what is happening? >> i believe agree with you in the abstract but in the real, i have to agree with you because that's a point we make in the litigation and i expect that it
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will be accepted. i think what to me is the right answer comes from the fact that sure the president can dispatch troops to the border for a reason that is consistent with presidential war powers. there needs to be an underlying fact. if it's just a question of interdicting immigrants, that does not relate to the enumerated power that the president-- >> the express purpose of the wall which is to prevent smuggling would not be military purposes of. saying that, i happen to agree with it but i'm not free to say anything else either. as the other issues, can this be vindicated? of course it can. i'm not burdened by commenting
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on anyone else's lawsuit but i'm not burdened by the problems that congressional standing raises. >> i a break agree with your congressional standing. as i mentioned here anyway, the justice department maintains, as a matter of law, that no president can be indicted as a matter of law. okay. these are positions that one might contest but normally, one can contest it in court. the justice department candidate you for something a rather, you moved to dismiss on the grounds that it is whatever the grounds are, and the court will decide. but if the justice department decides it cannot indict a president as a matter of law and will not do so, how do you ever get the courts to decide whether the justice department is right or not? it seems there is a catch-22 there. >> i'm quite familiar with that
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position. and with respect to the intentional to the indictment, it was not tested. >> my point is that it cannot be tested. >> i think you are right. there is a range of disputes that will never be tested. there are some that relate to war powers that will never be tested. >> let me ask one last question because that's a different topic. what would you think of a statute, and it was recommended a version of this, it automatically ends in 10 days or 30 days and if congress have not affirmatively acted to extend it? >> it's impracticable. my fundamental look at that is not just so much philosophical. how quickly can you obtain meaningful action, and what
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puts aside problems like border security that you can debate forever and come up with conclusions? what if we were under a cyber attack that is on many fronts-- >> the president could declare the emergency, act on the emergency, and congress within 10 days or 30 days could decide to expended or not. >> you can extend it forever, but when you get to what the fundamental power is, it's the power of the person. power of the purse. it relates to the power you actually have and if you disapprove of what the president is doing you will take steps to cut off the ability for him or her to do it. >> either you automatically cut off the declaration of emergency of congress does not
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declare it, to act under the power of the purse requires a vote to overcome the veto of prohibition and use of money. that is shifting the burden. >> i don't say you're not going to have a practical and constitutional difficulty, but i think, let me just say this. i think with clear definitions as to what constitutes an emergency you will be on much better grounds not only judicially but politically. >> definitions are should certainly in order, but without a time limit in which-- which was the original intent in 1976- - without restoration in some version of that, it seems to me that congress has stopped the appropriation of money under article 110. >> it's not my job to ask you the questions but yours to ask
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me. as you wargame this in committee, what do you think happens after the expiration of 10 or 30 days? >> what the president was granted ceased. >> one of the president does not do what you want? >> that's always the question. >> yes but again, i think the time limit issue is somewhat artificial, that may be helpful to have a time limit. you want to consider that, what but what happens at the end of it? i think you need to think that through. >> thank you. my time is very much expired. in >> i was not going to tell call time but mr. johnson mentioned there were flights coming. >> prof. turley, i'm going to start with, this is a great conversation to have. we have educated this
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responsibility over the course of 30 years and taking some power back on the side of the aisle and often times the only time you can do that is looking into the future instead of looking into the present because the present becomes highly polarized and we all know that very well. if you didn't before this week in congress you did today. i do appreciate all of that. but my question is not based on how congress can act to change the law, because i think we should, but my question is under the current law as it stands now, what risks do you see by those who are filing these lawsuits against the president? kind of along the lines of being careful what you wish for you might get it? >> there is the chance of bad cases making bad law. that's always a concern that you have when you look at a high profile case. i don't see how these cases can prevail under the existing law.
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i don't see a good faith argument that pres. trump lacks the authority that he used because there's virtually no conditions on that authority. i also don't see how a judge is going to run the table on any one of those sources of these funds. some will likely go through. it's more than enough for the next two years to start construction. i think the more productive use of our time is to focus on how we can have a workable solution to the nea which had some noble purposes at the outset. and, one of those is to go back to you-- the original draft and having an affirmative act after some period of time. >> that's another question. we talk about legislative intent, we talk about what happened and what was originally in the act and taken out of the act. before we can ever get to that we have to deal with the
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statutory framework as it exists. you only go to legislative intent if there's a discrepancy in the statute and i would argue that i'm not nearly as accomplished of a lawyer is the gentleman sitting down there are. but the witnesses sitting down there, but it is so vague in so many ways and so broad-based that i don't know how you would find a discrepancy in order to ever go to those kinds of questions. >> you can't. history actually works against the challenge. most of the emergencies that have been declared are largely economic and diplomatic issues. frankly, they are not that significant in terms of emergencies. frankly most people had no idea there are dozens of national emergencies ongoing. they didn't have an idea that we had emergencies over uncut diamonds from africa or zambian citizens who may be transferring transfers of wealth.
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the problem is if this is so easy that the past administrations have just used it to get an edge or deal with the problem, internationally on a unilateral basis. when the judge looks at this, is she really going to say well even though we've never rolled that a president cannot exercise the authority in this way, even though we've had dozens of ongoing emergencies, i'm going to use my judgment as to what constitutes an emergency on the border even though emergencies are not defined. you may find a judge like that but at the end of the day, i don't think you are going to prevail. that's what judges are not supposed to do. they are not supposed to substitute their judgment for an emergency. when people say it's not an emergency because look how big these numbers have declined, less than 400,000, people being captured or rested along the border. once again a judge will say it's not my job to say that one
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point one .2 million is an emergency. and 400,000 is a problem. elections have consequences. if a president ran on this day, he won and declared this is a national emergency. >> in my effort to get everyone to their flights i will yield the rest of my time. >> thank you sir. mr. jamie raskin, you are recognized. >> thank you mr. chairman and thanks for your testimony. let me try out a theory on the witnesses here. i notice that most of the cases have been brought first in the name of the constitution, and then as a statutory matter which i think is the right way to do it. or pres. truman came to congress asking for authorization to be able to seize the steel mills, congress
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said no and the president went out and did it anyway. the supreme court ended up saying no. it's a red light by congress. that's exactly what is happening here. the president came to us asking for money for the border wall in good faith what have you, we had a disagreement, and we didn't give it to him. now he clearly and explicitly wants to go around the back of congress and say i'm just going to go ahead and use this money anyway, so we say it violates our power of appropriation, the power of the purse, and the steel seizure cases on point. if they want to plead they have the authority to do so we would say no president has ever been able to invoke one of these rare emergency provisions statutes for the purpose of circumventing the will of congress, the express will of congress. i don't see why that doesn't settle it, and i don't see why we would like legislative
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standing without saying one way or that another what congress would do. can you guys illuminate a response? >> i am not dealing with the problem of legislative standing and litigation that i'm bringing. i represent el paso county and some other groups that are not only directly but immediately injured and have to do things now. >> and you are facing something like eminent use of domain power. >> and the planning that has to go with that but we will deal with those issues and time. i've been an opponent of congressional standing. i think it is rare that it can be supported because i do believe in the political question doctrine. what distinguishes this case that we have, a judge does not have to make his or her own determination as to what constitutes an emergency. this case can be decided on
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just the grounds that you described. obviously you've read the paper and endorsed everything that we've said to the district court. what a judge can, and i hope will be set in this case, is that this so-called event lacks the characteristics of an emergency. i can think of any number of things-- >> are you state speaking constitutional or statutory? i'm speaking in constitutional terms. a judge does not have to exceed textualism. >> we don't have a constitutional definition. >> the more important you don't have a statutory one. >> the word emergency appears in the statutes. >> yes but it is undefined and there can be emergencies and there can be emergencies. but in this case, where prof. turley and i disagree is with respect to what the ability of a court is to decide something
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that is, to me, and objective nature in the realm of permissible tivoli within the judiciary. we can also win this on statutory grounds. >> i agree with mr. turley that it's more ambiguous on statutory grounds because it appears to be a delegation to the president. of course the interpretation is completely deranged and off-the- wall. >> but there are two parts to statutory grounds. i think a court can say this is not an emergency because it lacks all of the objective criteria that an emergency needs to have. in addition, with respect to the use of funds, i'm confident we will prevail in front of conservative judges. >> doesn't help you that you want to interpret the statutes in a way that's consistent with the constitution and it protects
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congresses power rather than giving the president license to mingle the legislative will. >> we are leaving justice jackson concurring and moving to justice frankfurter. certainly constitutional avoidance can be applied and we can win this on a pure statutory ground. i think it is more likely to go back to justice jackson. this is, to me, one of those things that he describes in his third category of disputes because as you pointed out, the president is directly disobeying what congress has legislated. >> part of the fun that they had
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against legislative standing, it took everything not to push the button. i strongly disagree about the objectives of the legislative standing but we can put that aside. what i would encourage the committee to consider is there's no reason to use that. when judges go to standing when they don't have to deal with a tough question, if you use legislative standing, you risk a judge avoiding these difficult questions and saying you know what? i've come to a different conclusion. you don't i would disagree with you. this is not youngstown. in youngstown, hugo black said
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there's no statute underlining the authority. in is no statute here. you gave them a statute. and jackson's first category. >> the most recent legislative pronouncement on the issue. we had a very specific answer as to the request for money for the wall. the president was clear about that. we were clear about that. there's no ambiguity here. >> that's not the same thing. just because you did not grant an appropriation, it's not the same as an authorization of authority which you gave to the president. and this is the first category under jackson. jackson said that if there's an underlining statute, the president -- >> that's been over ridden by a more recent statement by congress, i don't think so. >> i don't think statutes are over ridden by statements of any kind. >> you decided how much money to give the president. that doesn't speak loudly to some amendment. >> i'm going to have to yield back. would you agree congress should use its power to say there's no
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emergency and to over ride the president. >> yes, i love congress standing up for its authority. >> thank you very much. i yield back. next. in the absence of a positive act to prohibit, are we to infer, you know, congress, not providing the money that the president requested that there is a statutory prohibition therefore to any action to provide money for said wall. >> yeah, it doesn't work that way. it's like i'm saying i wish i had a positive thing to say let me give you two negatives. it doesn't work that way. you have a positive grant of authority under the nea, your decisions under appropriation are informed by various issues of how much money you want to give. under what circumstances. how are you going to tie the
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money in? a court is not going to use that as a constructive amendment of the national emergencies act. they're just not going to do that. so what you have is what jackson described as the first category. where a president authority is virtually unassailable. you can disagree with the decision that he's making, but you gave him that authority. you have the ability to rescind the emergency. and a court is not going to do that for you. >> i want to drill down -- well, i'll get to you in a minute. the authority that was granted by congress in 1976, congress had enacted over 470 statutes by 1973. and so what we're doing is we're allowing under the statute, using appropriated funs for military -- in support of military action, didn't --
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wasn't the military asked by immigrations customs enforcement for assistance at the border? >> right, part of the problem with going down on military instruction is just that. they're given instruction under the chevron doctrine. but unlike the first immigration order. this is likely to be armor plated with agency findings. a court is hard pressed to substitute its own judgment for those agency decisions, including the need for military forces. where there is an issue, i think that can be a real issue, it will go to what they're doing along the border. but as i say in my testimony, i drilled down on each of the sources that the president has sited for these funds. and there are very strong arguments under every one of them that he can in fact use these funds. this has been a long standing problem. when president obama launched the libyan war, i represented both republican and democratic
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members opposing that war for the absence of a declaration. and absence of an appropriation. president obama funded that war out of loose change. this body gives so much money to the executive branch without many conditions that he was able to fund a war out of what was just sloshing around. >> isn't it true that it's not even -- emergency authority is not required to move money around within departments. >> that's right. okay. so, miss gutian. i want to move beyond the debate over what the president has done and quite frankly this hearing -- if this hearing is designed to examine that, it would have been better if we had had it before tuesday or whenever the vote was by the house. but looking forward, i think we have a great opportunity here. to make article one great again.
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and i want to follow up on your suggestion, publicly available reports. can you expand a bit about what's missing and what we need to be doing? >> well, it would be great to start out if you guys could find them and make them public. because the president is supposed to report to congress every six months on expenditures associated with states of emergency. that happened up through, i believe it was 2003. at that point, president bush delegated all of the emergencies other than 9/11 and the cuba naval blockade. at that point it was under the universal economics powers act. bush delegated to the treasury the authority to submit those reports from that point on you can't find them in the congressional record. they were no longer read into the congressional record. they're not available from 2003 on. we also haven't been able to find any of the reports on the 9/11 state of emergency.
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if you can find those and make them public, that would be terrific. we are of course -- have filed a foia request for those. going forward, that was another omission in the statute for accountability purposes that the nea did not require those reports to be made public in some form. and also was a little too minimalist in what it asked for in those reports. the expenditures give us some information but not enough. i do agree we need to more clearly define what an emergency is. i disagree with you that congress unintentionally left that out of the 1976 nea. i think the president is acting within his authority to define that emergency. he stated it multiple times. he believes there to be an emergency at the border. and i concur given the humanitarian crisis ongoing and the lack of the ability of ice to handle that threat and that
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emergency on its own. but putting that definition in the code is something i would agree with. and would be happy to work with the chairman toward that end and with that i yield back. thank you. >> thank you, sir. good maiden speech. you're recognized. >> thank you very much. i think it's great that we seem to have agreement by all four witnesses today that congress should assert its power to declare this national emergency null and void. so it's great we've got a starting point. i just want to look at a little bit on the under pinnings of the differences of opinion that folks have. professor, you've given your opinion that the absence of an explicit definition of an emergency in the national emergencies act gives the president virtually unfedererred authority to determine when we have an emergency. right? >> that's correct. >> okay. so you've argued that if we accept your definition that
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this president offer subsequent president could for example declare gun violence to be a national emergency, right? >> i don't see a basis to deny that, there's no definition. >> okay. and similarly, if we accept your definition or your argument that there's no definition, then a president could declare climate change to be a national emergency. >> yes, the only caveat i would note when the chairman referred to melting down guns for example, is that just because the president has the authority to declare a national emergency, that does not dispend the united states constitution. so acts like that could very well violate the second amendment or a president could violate other amendments. so the congress could not pass a statute that allows for the suspension of the constitution unless it's a suspension of habe yous corpus. >> at what point of a
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declaration of a national emergency start encroaching on explicit constitutional language or implicit constitutional language so as i was looking at your argument that the absence of a definition means there's unlimited authority, i did what a lawyer does. and i started looking at diction are ris. because in the rules of statutory construction, we look at the purpose of a statute. then we look at the plain language. the plain meaning. so when i looked at blacks law dictionary and websters and everything, i found the definitions differed a little bit. the clear commonality was words like sudden and unexpected and unforeseen. and having worked in the immigration law sector for many years and having visited the el paso border with my colleague, representative escobar recently, i can tell you that the situation at the border isn't sudden or unexpected or
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unforeseen. so with that, miss guitin. you spoke in your testimony about abuse of emergency powers. can you speak to whether the situation at the border meets either those statutory intent or common definition of an emergency and whether it may be pushing so far into the idea of undermining constitutionality. >> thank you for that question. i agree that the act gives the president maximal discretion. however, as i said in my opening statement. even the broadest discretion can be unlawfulfully abused. i see that as having two dimensions in this case. i think courts are entitled to look at the plain meaning of words. courts and congress. we don't have to pretend that president trump could define emergency as its opposite. there are some basic parameters that must be adhered to. and that i think courts are
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allow to consider. take judicial notice of. i don't think the president could say a potted planted is an emergency. it couldn't work. there's not that much discretion necessarily. but the second part of this is what both of you were talking about which is congress cannot give the president discretion to violate the constitution. the president could not declare a national emergency because too many people of color are voting. the president could not declare a national emergency because news papers are publishing editorials critical of him. and there's strong evidence in this case, that the president declared a national emergency because congress exercised the power of the purse. that's a constitutional prerogative of congress that he is trying to undermine with this declaration. and you know, professor truley's analysis tweets congress' repeated votes against funding the law as if they were legally irrelevant.
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and i don't believe they are. i think they could factor in a number of ways but the one i mentioned just now is one. >> if i can move to mr. gerson. can you comment on constitutional problem created by the president's declaration of a national emergency following the considered bipartisan, vote of congress. other than the role proposed by the president. >> that's the constitutional crux of our argument. that's the point at which it begins. we wouldn't be able to fit into justice jackson's third criterion without disobedience of a congressional edict by the executive. so that's our starting point. if you're implying that you agree with me, i'm happy to know that. >> thank you very much. i yield back. >> thank you. republicans have exhausted
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their witnesses. and so we'll recognize miss garcia from houston. >> thank you mr. chairman. and i just wanted to make a little comment here. we keep talking about campaigns and campaign slogans and i think one of our colleagues mentioned make article one great again. the better button might be, just like we had if the economy's stupid, it should probably be is the constitution stupid? but maybe i'll put some money together and get some of those funds real quick. but you know, i am concerned about the balance of power. and separations of power. i do think this is a constitutional issue. and i really do thank everyone for coming today. particularly you, miss al have varez. you've traveled a long distance. you come from my home state. i'm from paulito blanco.
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i too grew up on a farm. and although i'm not next to the border, i'm close enough that i can tell you that any time we always got concerned and we always knew when somebody crossed over our farm. because there would either be upheaps that was unlocked or some footprints. there would be some sign that somebody traversed our property. and i know our concern, so tell me, again, you've not seen or know of any rapists or murders or drug dealers or human traffickers or any, you know people trying to do harm to anyone around your property or any of your neighbor's properties? >> not at all, ma'am. >> and have you had a chance to visit with any of the property owners joining you to see if they share your concern about what this proposed wall might be doing to your farm and your livelihood? >> yes, ma'am. i will say i can speak for my
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community. most of my community is made of elders. who are not very familiar with the issue. that have been actually threatened at one point or another to sign over documents and stuff or else their properties will be taken away. mind you, we people in star county, and i can speak for myself and for my area, we do not want this wall. and we do not see a crisis. especially rapists, gang members or an invasion. >> right. and are you the only party in this lawsuit? is there a number of other parties in the lawsuit that you mentioned? i'm not familiar with it? >> there's a few other parties. >> there is a few other parties. >> well, in your opinion, because you're down there, i mean do you see a crisis of something as one of my colleagues has described as of
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grave concern of a change or something that may be endangering to your area. >> not at all. >> well, thank you again for coming. i know it's a long distance. mr. gerson i wanted to first tell you i take it el paso county is in good hands and i wonder if you had reviewed or had listened to the recommendations that miss goikin put forth in her opening statement and had any reaction to her recommendations or do you have any other recommendations that we should consider? >> well, i suggested earlier that i'd start with the definition. but as to miss goitin's views, i read her testimony. i find it edifying. you notice the range of disagreement here is very small. in terms of what your legislative purpose is going to be. so i would recommend considering all of those
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things. none of this -- none of what you ultimately have to do deals with the lawsuits or other things that are going to be determined elsewhere. but you will have a chance to write meaningful law. as i say, i'm someone who normally, in my own political life, supports conservative judges because they read the law, that they're textualists, that they don't make it up. that they're originalists in terms of constitutional interpretation. i carry that through to this. and much of my criticism has to lay at the feet of the congress. which is ab de kateed responsibilities that it has. i know from long history of dealing with there body, that oftentimes things are left contradictory or unstated so that the law itself gets passed so that somehow eleventh hour agreement is reached. that's a bad policy to follow.
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whether you're talking about who's covered by the civil rights act. which is constantly being litigated or anything else. and so i think it's fair to say that there's pretty great agreement in this room that there's been an erosion of congressional power. as i suggested earlier, too often the congress acts like a parliament. that's not what it was set up to do. it was set up to be something else. because there was a parliament that -- >> what do you think about this notion of time limits. a termination period or come back and get extended. >> i said to mr. nadler in a the concept of -- that you ought to address the question of time limits. but recognize that it's inherently problematic. that you have to play it out. time limits expire, what do you do when they do? and no definitive action has
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been taken. you have to play that through when you decide what to do. and you're not doing it just for yourself, you're doing it for future congresss. you're doing it for future administrations that might be of a different party than you are. so you have to think about the country. and you have to think about policy. and you need to be wise. >> thank you. i think my time is up. i yield back. . >> now recognize judge gomber from texas. >> i was reading earlier an article published from the washington post and so many abc, nbc, repeatedly calling what's going on at the border a crisis. constantly using the word, c, this crisis word. but that was when president obama was in office. and now that he's not in office, those same media are now saying oh, there's no
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crisis. i know there are some that have said the numbers are down last year. but if you look at october, november, december, january, as we had testimony from that very table earlier this week, used to be 80% adult males coming into the country looking for jobs from mexico. and now it's a huge majority. family units, or alleged family units bring in children because they know if they bring children they'll be allowed to stay here. from the nights, i certainly appreciate testimony from anybody that lives there. but of all the nights i've spent all night on the border, i've seen a crisis. and the crisis doesn't stop when the homeland security takes over as some of the border patrol related to me,
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their drug cartels call us their logistics, and i said like the commercial? right. the drug cartels get them illegally into the country. and then they often provide an address or a cabbing in the city where the drug cartels are going to allow them to work off the rest of the money they owe the cartels. and then homeland security would ship them to those locations. so it shouldn't have been any surprise in the last week or so. there was a massive bust. in one of our biggest cities. drug cartel meth lab. when you see a rape trees. you see multiple rape trees signifying this is where we've raped women. i guess it's all in who's view, but i would think that the women felt like it was a crisis.
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but i have been very concerned about the power we have given up here in congress. i'm concerned about that during the bush administration. the obama administration. and i thought it was a terrible time to give up specifically legislating appropriations. some call them earmarks. earmarks if they're self serving. they're an abomination. but if it's legislature specifically saying this is where you spend the money. it's normally a good thing for congress to do. and we haven't been doing that for a long time. so when the national emergency act was passed, it did indeed give up tremendous amount of power that congress, i don't think, should have given up. but i know you're aware. i mean when we talk about maybe a time limit. it looks like the obama administration has eleven of
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their emergency declarations still going on. professor turley, whether i agree or disagree with you, i always appreciate your consistency and integrity. and you had the comment that first and foremost, a court is unlikely to do for congress what congress will not do for itself. and it reminded me of a comment my friend justice skalia said when i asked him about something. not as specific. they don't give advisory opinion. he said look, if you guys in congress are not willing to do your job, don't come running over to our court wanting us to do it for you. and i think that you put it more succinctly. but that would seem to be -- i mean, even though we've given up all this power, it looks like the courts have been pretty consistent in saying, you gave it up but it's your
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job, not ours. do you know of any cases of courts of appeal other than maybe a ninth circuit that have said otherwise? >> no, in fact, in the testimony, i talk about a couple cases that strongly militate the opposite direction. one was actually a decision i believe by justice briar when he was on the could recall of appeals. -- when he was on the court of appeals. where he looked at this issue of the law expressly stating the congress has to get together every six months and emergency was challenged by saying you haven't got on the getter. you satisfy that part of the statute. so this emergency must be invalid. now just look at that for a second. in comparison to the rest of the hack, that provision is the model of clarity. -- to the rest of the act -- six months later you must get together and deliberate on this emergency. even that, the court said, is
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not going to be binding under the statute. so what you're going to ask a court to do is to go deeply into a policy judgment of what constitutes an emergency. and you're going to have to do that after the supreme court just resumed in favor of the administration on its immigration orders and said that there was not a likelihood of prevailing in that case. because the president has such tremendous deference at the border. i don't consider that a winning hand. i don't consider that a hand of any kind to go to court with. mr. chairman, i would be glad to work with anybody on your side to try to limit the national emergency act. but i do think it's our job. i yield back. >> i appreciate your comment. in the previous time we've been here, we've seen a lot of unanimity. this needs to be something that can happen. maybe we'll is a bipartisan result to this. miss escobar is next.
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and we appreciate your constituent and your lawyer. >> i do too. >> thank you mr. chairman and many thanks to our panel, mr. gurson. thank you for representing the great county of el paso. for context, let me tell all of you about my community. i'm from el paso, texas. the beautiful, vibrant, new, ellis island. which is on the u.s.-mexico border. with absolute sincerity, i invite all of you, every member of this judiciary committee to come visit. please allow me the opportunity to give you a tour of our border. i am a proud woman of the border. my family has lived there for over 100 years. so i can speak with some authority on this issue. i can assure you, we have never been safer or more secure. while we have a wall in el paso, we were safe long before it was ever constructed.
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and the question is why have we been so safe? well, there's three factors that i can point to quickly, community policing by local law enforcement. a significant federal law enforcement presence. and most importantly, i believe, the fact that immigrant communities are among the safest in the nation. our immigrant community is made up of 1/4 immigrants. and we have multigenerational roots in the region. el paso is not unique in this way. most of our southern border communities are just like this. and mr. johnson, we do face a challenge, i agree with you on that. you are right. and you are right when you say that we should be introspective about these issues in order to find real solutions. so the drug issue, which is one of the reasons sited for the wall is not a new issue. we know it's not a new issue. our country has long had an insatiable appetite for illegal drugs.
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the other reason sited, and most discussed by my colleagues, is the thousands of asylum seekers arriving everyday at our doorstep. this too is not new. we first saw this phenomena in 2014. central american unaccompanied minors and families have been running from crushing poverty, violence, and persecution for nearly five years now. what happens is they come in what's called a surge. this is the fourth surge in five years. mr. gomber just mentioned in a the 2014 surge was called a crisis by members of the media. yes, it was the members of the media, not by those of us on the u.s.-mexico border. in fact, i just had jaclyn print out a piece that i wrote and published for the new york
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times about this very surge in 2014 called why the border crisis is a myth. this was published on july 25th 2014. mr. chairman, i ask unanimous consent to enter this into the record. >> without objection, it will be done. >> the question we should be asking is why hasn't the department of homeland security, which has received massive federal investment, been strategic or nimble enough to deal with each successive surge. especially when we are in year number fife? five? i'm not afraid of families arriving at my doorstep. i live in el paso. i'm afraid of the amount of money that this non-emergency will be stealing from military families will were promised badly needed daycares and
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schools. -- military families whether or not families who were promised -- one of this country's most important assets, fort bliss. money taken from our troops to fund a political prop. this obsession with a wall, which will be funded at the expense of our military is heart breaking to me. a day before yesterday, one of my colleagues on the house floor said that we are a nation at war. we are not at war. yet in my community, barricades with wire are being put up at our ports of entry. starting this week, the return to mexico policy will be implemented. we are turning away asylum seekers at our ports. we are driving them to places that are more treacherous and dangerous. that is the crisis. and that is a manmade crisis.
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that one is easily solvable. if we truly want to get to the bottom of this surge, we need to do the hard work necessary to work with the northern triangle, to address the challenges, some of which we have created. i shared that with you, mr. johnson. we have had a hand in driving people out of their homes from central america. we have an obligation to solve this in a compassionate, humanitarian way, but again, this is not new, this is not an emergency, i know my time is up. if i had just a couple more seconds, i would ask our landowner, miss al have miss alvarez everything you've had to endure, you've had to hire lawyers, you've had to fly to washington dc to defend your property. i'm very curious about what this government is putting you through.
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. >> this government has created a loss of family members. a loss of friendships. a division amongst us in our communities. because, you know, people agree and disagree. mind you over an issue that i strongly disbelieve in. there is no crisis. these people, like you said, are in the ports of entry, trying to come in with every lawful right. because they do have a right to claim political asylum. but somewhere someone has created hate towards these people. we are at a record low of
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entries right now. even though the numbers are so high, because the media has put it out there. yet why do we as a community have to pay for someone who wants to put up a barrier, a wall, that is not going to work, and that has been proven not to work. i'm here. i've been going through a lot. but i am here. and i am here to fight this. and i a ige with a lot of things. things need to change. we need to change immigration reform. we need to change parts of the constitution. so we do not create loopholes where people take advantage of them. and we're in the situation that we're in.
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. >> thank you. . >> thank you miss escobar. you're recognized. thank you for differing. >> thank you. thank you mr. chair. thank you for the opportunity you're giving our committee. to examine and address the gross over reach by the executive branch. the president all ready identified $8.1 billion in congressionally appropriated funds that he plans to take to build his ineffective wall which he promised mexico would pay for. in my home state of pennsylvania alone, we have identified more than $165 million in military projects that could be on the chopping block. and at risk. it's an irony. that the protection of our homeland security, which the president professs to, he's actually going to harm. -- professes to, he's actually
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going to harm. he's harming our military. 58 former national security officials condemned the president's emergency declaration and stated any redirection of funds will quote undermine u.s. national security and foreign policy interests. mr. chairman, if it is all right with you, under unanimous consent, i would offer this report into the record. >> without objection, so done. >> it's signed by such people from both sides of the aisle with decades of leadership experience in bipartisan, different administrations. such as madeline albright, james clapper, samantha powers, leigh-ann pineta, susan wright, just to name a few. and here are a few of their important findings, illegal border crossings are at nearly 40-year lows. there is no documented terrorist or national security emergency at the southern border. there is no emergency related
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to violent crime at the southern border. there is no human or drug trafficking emergency that can be addressed by a wall at the southern border. and i won't go on, but you know the other very substantive findings. but i will end on the final one. there is no basis for circumventing the appropriations process with a declaration of national emergency on the southern border. so i'd like to ask the question, and mr. gurson i'll pivot to you if i can. specifically, the president sited in his proclamation which quote requires the use of arm forces and allows for the taking of funds that quote have been appropriated for military construction, can you please explain why these two requirements in 08 do not apply to this proclamation. and also if you could speculate, and importantly,
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substantively speculate on the impact that these takings will have on readiness and morale. well, i'm a pence sylvainian and military veteran, so perhaps i have some useful knowledge there. but that's not why i'm here. i'll address it if you'd like. the issue that we face is something i talked about earlier. and you're in essence paraphrasing something that i and professor tribe and the lawyers at wilky farr have helped us. and they said in our briefs, it's one of the reasons why as i said to mr. raskin earlier if there is a constitutional avoidance issue that we can win on statutory grounds. funds that are appropriated for a specific purpose, pursuant to law as to what they are, should
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not be held to be flexible. but again, the point is this whole thing can be defeated irrespective of any discussion of that. because there ain't no emergency. this is the reverse of things. you know. if it doesn't look like a duck. if it doesn't walk like a duck. if it doesn't quack, it might be a hippopotamus, but it isn't a duck. and it's your job to define this law i'm very appreciative of the remarks made by the people who live on the border. my son's god father described himself as a wet back who made good under the name george ortiz as he moved from texas to california. i'm conscious of these issues, but as i said, i'd be here making the argument that i made even if i agreed fully with the president as to the need for
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the wall. there's nothing illegal about appropriating money to do that. the problem arises because you specifically declined to give him what he asked for. it's no implication. you didn't do it. and as i say, as i said at the outset, i am making a fundamentally conservative point. plenty of conservatives agree with me. as you know from my descriptions in the documents here. that i'm affiliated with people well to the right of center and way to the right of you. and that's okay. what you've heard here. and the thing i hope to take away with from this. is the high level of agreement as to how you august to be exercising the autonomy that some good conservatives like james madison have bequeathed to you. >> i know my time expired but a couple seconds to compliment mr. garrison.
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a fellow pennsylvanian. i used to teach writing at la sigh university. i appreciate your plain english when you say, there ain't no emergency. thank you mr. gurson. >> thank you. we have and with unanimous consent will enter into the record the following materials. a cover letter and three articles by professor elia. a statement by the constitution project at the project on government over sight opposing trumpings declaration of national emergency. a letter of owe also opposing the emergency declaration. an article by liz bit goitin -- elizabeth goitn. which was the article that spurred my interest in this and set the ball rolling. and an article by david french in the national review. without objection, so entered. i want to thank the members of the panel, our witnesses, y'all were a great panel. i think in all my -- this is my
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13th year in congress. i haven't had a better panel that discussed the issues. and probably brought the two sides together. i think we hopefully will have some legislation as a result of this hearing. i think it was very productive. and very worthwhile. miss al have a reservoir, you're most appreciated for coming here. miss al varez. you have been a star here at a citizen i also want to thank cspan. this was better than michael cohen. this hear something adjourned.
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