Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening remarks during a Subcommittee on the Constitution, Civil Rights and Civil Liberties hearing on the National Emergencies Act of 1976, which President Trump is attempting to exploit to build a wall along the southern border:
"Thank you, Chairman Cohen. And thank you for convening this hearing on this important topic.
"I would also like to thank all of the witnesses for appearing here today. I am heartened by the fact that their opposition to President Donald Trump’s emergency declaration comes from across the political spectrum because, ultimately, this debate should not be about partisan politics. It should be about protecting a principle that is fundamental to our constitutional democracy—namely, that the chief executive cannot unilaterally spend taxpayers’ money, or redirect funds appropriated by the people’s representatives. Article I, Section 9 of the Constitution makes it unmistakably clear that "No money shall be drawn from the Treasury, but in consequence of appropriations made by law."
"President Trump violated that basic command when he invented a so-called "emergency" as an excuse to build a wall that Congress explicitly rejected. That kind of bad-faith action is a violation of the President’s oath to defend the Constitution and to faithfully execute the law.
"Even worse, the emergency law that President Trump invoked allows the military to redirect funds only if an emergency "requires use of the armed forces." And, those funds can be used only for construction projects that are "necessary to support such use of the armed forces." This law is supposed to be used for actions such as building airfields or barracks to help our troops fight wars overseas. A wall, however, cannot possibly be "necessary to support" a military operation on the border because the Posse Comitatus Act and related laws expressly prohibit the military from engaging in law enforcement activities. The military, therefore, cannot enforce our immigration laws.
"That means the President’s actions are doubly unlawful. There is no real emergency; and even if there were, the President could not redirect military funds for a purpose expressly prohibited to the military.
"This past Tuesday, the House passed a joint resolution to terminate this so-called emergency. That was an important step in reasserting Congress’s role as a check against President Trump’s unlimited appetite for power. And I hope that my colleagues in the Senate—particularly those on the other side of the aisle—will take a hard look at the bigger principles at stake, including their own role in our constitutional system, when they go to cast their votes.
"But this hearing is about more than debating the legality or the merits of the President’s February 15 emergency declaration. His decision to invoke so-called "emergency" authorities should give all of us great pause, because those authorities go beyond the ability to redirect funds in order to build a wall.
"The National Emergencies Act, which regulates the process by which the President can declare an emergency, was enacted by Congress in 1976 in order to curtail certain abuses of emergency authorities that had come before. The Act provides a general framework through which the President can declare national emergencies and through which Congress can review and terminate them. Importantly, at the time the law was enacted, it allowed Congress to terminate any emergency by a majority vote in both Houses.
"But in 1983, the Supreme Court held that Congress cannot "veto" actions taken by the executive branch through majority votes in the House and Senate. Instead, if Congress wants to override the President’s actions, it has to pass a new law—which means it has to get the President’s signature or pass the law with veto-proof majorities. Consequently, shortly after that decision, Congress amended the National Emergencies Act to be consistent with that ruling.
"Unfortunately, in doing so, Congress abdicated a substantial amount of its power to act as a check and balance. The bottom line now is that if the President declares an emergency, and we in Congress do not like it, we either have to convince the President to sign a joint resolution to terminate his own emergency declaration—an unlikely occurrence—or we need a veto-proof majority, which is difficult to muster.
"As to President Trump’s bogus "emergency," I think on principle that every member of the House and Senate should vote to terminate it. The Administration can scarcely tell you with a straight face that there is an emergency on the southern border. Take the partisan politics away and this would not be a close call.
"But whether we are addressing this so-called "emergency" or some future emergency declared by some other President, it should not take a supermajority of Congress to stop the President from abusing power that has been delegated to address urgent circumstances.
"As Elizabeth Goitein will describe, there are numerous emergency statutes that give the President a broad range of potential authorities—including the ability to bar certain exports or even potentially to take control of communications networks—all of which could be subject to abuse by a President who does not respect the rule of law.
"We may agree that the President should be allowed some types of discretion during true emergencies. But an emergency cannot continue forever. So to shift the burden of inertia, we should consider proposals that would set a time limit for emergencies, requiring that they expire after a certain period unless Congress acts and ratifies the President’s actions through legislation. This type of sunset provision would restore the authority and the responsibility to change the law to where it belongs: in Congress.
"We should also consider separating out which so-called "emergency" statutes are designed for true emergencies, and which ones use that term to describe other contingencies that may call for particular responses within the executive branch, but which do not involve truly urgent circumstances.
"I recognize we will not solve all of these issues today, but I am eager to begin this important dialogue.
"I thank the witnesses for their participation and I look forward to their testimony.
"I yield back the balance of my time."