THE NATIONAL EMERGENCIES ACT OF 1976 HEARING BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED SIXTEENTH CONGRESS FIRST SESSION FEBRUARY 28, 2019 Serial No. 116–5 Printed for the use of the Committee on the Judiciary ( Available http://judiciary.house.gov or www.govinfo.gov U.S. GOVERNMENT PUBLISHING OFFICE 37–840 WASHINGTON : 2019 VerDate Sep 11 2014 04:06 Oct 12, 2019 Jkt 037840 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 E:\HR\OC\B840.XXX B840 dlhill on DSKBBY8HB2PROD with HEARING COMMITTEE ON THE JUDICIARY JERROLD NADLER, New York, Chairman ZOE LOFGREN, California DOUG COLLINS, Georgia, SHEILA JACKSON LEE, Texas Ranking Member STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, JR., HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia Wisconsin THEODORE E. DEUTCH, Florida STEVE CHABOT, Ohio KAREN BASS, California LOUIE GOHMERT, Texas CEDRIC L. RICHMOND, Louisiana JIM JORDAN, Ohio HAKEEM S. JEFFRIES, New York KEN BUCK, Colorado DAVID N. CICILLINE, Rhode Island JOHN RATCLIFFE, Texas ERIC SWALWELL, California MARTHA ROBY, Alabama TED LIEU, California MATT GAETZ, Florida JAMIE RASKIN, Maryland MIKE JOHNSON, Louisiana PRAMILA JAYAPAL, Washington ANDY BIGGS, Arizona VAL BUTLER DEMINGS, Florida TOM MCCLINTOCK, California J. LUIS CORREA, California DEBBIE LESKO, Arizona MARY GAY SCANLON, Pennsylvania, GUY RESCHENTHALER, Pennsylvania Vice-Chair BEN CLINE, Virginia SYLVIA R. GARCIA, Texas KELLY ARMSTRONG, North Dakota JOE NEGUSE, Colorado W. GREGORY STEUBE, Florida LUCY MCBATH, Georgia GREG STANTON, Arizona MADELEINE DEAN, Pennsylvania DEBBIE MUCARSEL-POWELL, Florida VERONICA ESCOBAR, Texas PERRY APELBAUM, Majority Staff Director & Chief Counsel BRENDAN BELAIR, Minority Staff Director SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES STEVE COHEN, Tennessee, Chair JAMIE RASKIN, Maryland MIKE JOHNSON, Louisiana, ERIC SWALWELL, California Ranking Member MARY GAY SCANLON, Pennsylvania LOUIE GOHMERT, Texas MADELEINE DEAN, Pennsylvania JIM JORDAN, Ohio SYLVIA R. GARCIA, Texas GUY RESCHENTHALER, Pennsylvania VERONICA ESCOBAR, Texas BEN CLINE, Virginia SHEILA JACKSON LEE, Texas KELLY ARMSTRONG, North Dakota JAMES PARK, Chief Counsel PAUL TAYLOR, Minority Counsel (II) VerDate Sep 11 2014 04:06 Oct 12, 2019 Jkt 037840 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 E:\HR\OC\B840.XXX B840 dlhill on DSKBBY8HB2PROD with HEARING C O N T E N T S FEBRUARY 28, 2019 OPENING STATEMENTS Page The Honorable Steve Cohen, Chairman, Subcommittee on the Constitution, Civil Rights, and Civil Liberties ......................................................................... 1 The Honorable Mike Johnson, Ranking Member, Subcommittee on the Con- stitution, Civil Rights, and Civil Liberties ......................................................... 4 The Honorable Jerrold Nadler, Chairman, Committee on the Judiciary ............ 6 WITNESSES Elizabeth Goitein, Co-Director, Liberty & National Security Program, Bren- nan Center for Justice Oral Testimony ................................................................................................. 10 Prepared Testimony ......................................................................................... 12 Nayda Alvarez, Landowner and Resident of La Rosita, Texas Oral Testimony ................................................................................................. 30 Prepared Testimony ......................................................................................... 32 Jonathan Turley, J.B. and Maurice C. Shapiro, Professor of Public Interest Law, George Washington University Law School Oral Testimony ................................................................................................. 35 Prepared Testimony ......................................................................................... 37 Stuart Gerson, Member, Epstein Becker Green Oral Testimony ................................................................................................. 55 Prepared Testimony ......................................................................................... 57 LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING Item for the record submitted by the Honorable Veronica Escobar, Sub- committee on the Constitution, Civil Rights, and Civil Liberties .................... 85 Items for the record submitted by the Honorable Madeleine Dean, Sub- committee on the Constitution, Civil Rights, and Civil Liberties .................... 90 Items for the record submitted by the Honorable Steve Cohen, Chairman, Subcommittee on the Constitution, Civil Rights, and Civil Liberties ............. 106 (III) VerDate Sep 11 2014 04:06 Oct 12, 2019 Jkt 037840 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 E:\HR\OC\B840.XXX B840 dlhill on DSKBBY8HB2PROD with HEARING VerDate Sep 11 2014 04:06 Oct 12, 2019 Jkt 037840 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 E:\HR\OC\B840.XXX B840 dlhill on DSKBBY8HB2PROD with HEARING THE NATIONAL EMERGENCIES ACT OF 1976 FRIDAY, FEBRUARY 28, 2019 HOUSE OF REPRESENTATIVES SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES COMMITTEE ON THE JUDICIARY Washington, DC. The subcommittee met, pursuant to call, at 12:21 p.m., in Room 2141, Rayburn House Office Building, Hon. Steve Cohen [chairman of the subcommittee] presiding. Present: Representatives Cohen, Nadler, Raskin, Scanlon, Dean, Garcia, Escobar, Jackson Lee, Johnson, Gohmert, Jordan, Arm- strong, Reschenthaler, and Cline. Staff Present: James Park, Chief Counsel, Constitution Sub- committee; Susan Jensen, Chief Parliamentarian; David Greengrass, Deputy Chief Counsel; Matt Weisman, Legislative Di- rector; Patrick Bond, Legislative Assistant; Jacqueline Sanchez, Legislative Assistant; Robin Chand, Legislative Assistant; Armita Pedramrazi, Legislative Assistant; Colin Milon, Legislative Assist- ant; Devon Ombres, Legislative Assistant, Alex Lipow, Legislative Aide; Will Emmons, Professional Staff Member; Madeline Strasser, Chief Clerk; Julian Gerson, Staff Assistant; Brendan Belair, Minor- ity Staff Director; Bobby Parmiter, Minority Deputy Staff Director; Jon Ferro, Minority Parliamentarian; Paul Taylor, Minority Chief Counsel, Constitution Subcommittee; and Andrea Woodard, Minor- ity Professional Staff Member. Mr. COHEN. It is good to have the gavel. The Committee on the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, which is the name it had when the Democrats were in the majority, and it is the Democrats name once again, and forever after, so it shall be, will come to order. Without objection, the chair is authorized to declare recesses of the subcommittee at any time. Welcome to everyone to today’s hearing on the National Emer- gencies Act of 1976. I will now recognize myself for an opening statement. I am pleased today to convene the first hearing of this Sub- committee on the Constitution, Civil Rights, and Civil Liberties, for the 116th Congress. I look forward to working with Ranking Mem- ber Mike Johnson, and other members of the subcommittee on the many challenging and pressing issues that we will be addressing in the months to come. (1) VerDate Sep 11 2014 04:06 Oct 12, 2019 Jkt 037840 PO 00000 Frm 00005 Fmt 6633 Sfmt 6602 E:\HR\OC\B840.XXX B840 dlhill on DSKBBY8HB2PROD with HEARING 2 It is fitting that our first hearing here will focus on the National Emergencies Act of 1976, and its implications for one of the core tenets of the Constitution’s design, a governmental structure de- fined by checks and balances and the separation of powers, all from the brilliance of James Madison. The primary function of the Constitution, besides the Congress, under Article 1, is the power to legislate, including the power to ap- propriate funds. As every grade school student, high school stu- dent, law student, is taught, Congress writes the laws, while the President’s job is to enforce them. We are also taught that Congress has the power of the purse. If the President wants to spend money for something, he or she needs to get funding from the legislative branch. That is Article 1. Unfor- tunately, President Trump has undermined those basic principles. After making a campaign pledge to build a wall along our southern border, 2,000 miles long, and then promising that Mexico would pay for it—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 design—he was met with a dose of reality. That was that Mexico was not going to pay for it, and that neither was Congress. Polls show that the American people do not want to pay billions of dollars for a vanity project when illegal immigration is historic lows, when a wall would do nothing to stop drugs being smuggled into our country, which come through our ports of entry by about a 90 percent amount, and when families fleeing violence need an orderly and humane system to process asylum claims, not a con- crete wall. And there aren’t women being duct taped over their mouths, legs immobilized, sex trafficked into our country. That is pure fantasy. That is why earlier this year, Congress rejected the President’s request for $5.7 billion to build a border wall. In fact, President Trump did not even seriously pursue those billions of dollars dur- ing his first 2 years in office, when his party controlled both Houses of Congress. But the President doesn’t not like getting his way. That is why 2 weeks ago, in a petulant action, he invented a so-called emergency to order—to divert billions of dollars