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tv   Brennan Center Symposium on Presidential Emergency Powers - Legal Overview  CSPAN  January 17, 2019 9:07pm-10:44pm EST

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application and scope of presidential powers. this panel is one hour and 35 minutes. [applause] >> good morning, everyone. thank you for being here. as jim told you, i'm liza goitein and i correct the liberty program at the brennan center for justice. we have been researching emergency powers the past two years and i am thrilled to have the chance to share some of what we've learned at a time when this issue is very much in the news and on people's minds. the format for first discussion will be different from the usual panel discussion. i will lead off by giving an overview of the legal framework for emergency powers and how that work came about. then i will sit down and speak to the speakers one by one and they'll tell you about a particular power or category of
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powers within that larger framework to give you a taste of what we are talking about here. then i will come back at the end and chime in with my view on whether emergency powers would permit the president to build a wall along the border and after that we will all take our seats and you can direct questions at any or all of us. let's start with the most basic question. click. click. hello, av. all right. well, maybe no slides for now. i think the side it says the basics. [laughter] >> what are emergency powers and why do we have them? emergency powers have existed in countries around the world for hundreds of years. the argument for emergency
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powers is very simple. the powers that are conferred to the government by existing laws might not be sufficient to respond to an emergency because by definition emergency is on -- unforeseen and unforeseeable. amending the law to provide extra powers might take too long and might be damaging to the principles considered sacrosanct in ordinary times. emergency powers give the government, the head of state, the president or by minister a temporary boost in power until the emergency passes or until there is time to change the law to the normal legislative process, whichever comes first. while this concept seems simple enough, emergency powers can mean many different things in practice. the constitution of ancient rome contained a lot of checks and balances to safeguard the rights of citizens but during emergencies the roman senate
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could direct the two top executive officials to appoint a constitutional dictator who would have near absolute power for areas of up to six months. let me give this a shot. okay. much better. the basics. [laughter] this is what emergency powers are. like the constitution of ancient rome, most constitutions today include special ground rules for emergencies. 178 countries had constitutions that include emergency provisions. rather than give all power over to a newly appointed dictator , these powers and constitutions usually enhance the power of the existing head of state, often by allowing him or her to suspend some or all the rights the constitution gives to the people.
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the u.s. constitution is a bit of an outlier because it includes no separate regime for emergencies. it does contain a sample of provisions that are emergency like but these are vested in congress, not in the president. most notably the constitution authorizes congress to suspend the writ of habeas corpus in other words to allow government officials to imprison people without judicial review when in cases of rebellion or invasions of public safety may require. the constitution also gives congress the power to provide forth the militia, which today is understood to mean the armed forces in general. to execute the laws of the union and to suppress insurrections and repel invasions. in the absence of any explicit emergency authority in the
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constitution, u.s. presidents have usually relied on congress to provide them with the necessary powers to deal with emergencies and that is something congress has done periodically from the founding of this country, passed laws to get president by authorities that he can use in his discretion during military or economic or labor emergencies. beginning in the early 20th century, a new system evolved whereby the president to declare a national emergency and that would trigger otherwise dormant powers contained in statutes passed by congress. up through the early decades of the cold war, the statutory authorities piled up and because presidents had very little incentive to terminate the state of emergency once it started , those piled up, too. in the 1970s, congress took notice. a special senate committee found that there were several clearly outdated state of emergency sitting there on the books and there were hundreds of accumulated statutory powers the president could use during an emergency.
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congress responded by passing the national emergency act of 1976 to increase its oversight of the president's use of emergency powers. under the act, the president still has complete discretion to declare an emergency but has to specify in the declaration what statutory powers he intends to invoke and has to report to congress every six months. the emergency will expire after a year unless he renews it and congress is required to meet every six months while a state of emergency is in effect to consider a vote on whether to terminate the state of emergency. at the time, the law allowed congress to do this by voting on a concurrent resolution which was sometimes called legislative veto and that goes into effect without the president's signature. by any objective measure, the law has failed to achieve its purpose. at best, some of its provisions
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have secured a modicum of truth -- transparency but requiring the president to renew states of emergency on a yearly basis has been a trivial barrier and most of the states of emergencies declared that the act was passed are still in effect today and as for congress oversight role, the record speaks for itself. during each of the 40 years, 40 plus years, the law has been in effect, there have been one state of emergency. that means congress should met 80 times at this point and voted on whether to end a state of emergency. it has not done so, once. moreover, if congress were to do that today the rules would have changed a bit. in 1983, the supreme court ruled that legislative vetoes are unconstitutional. to end the state of emergency congress would have to vote on a joint resolution, which the president has to sign. assuming he would veto it in congress would have to muster a vetoproof majority to override a state of emergency.
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today there are 31 states of emergency in effect. i don't want you to be alarmed despite the alarm on the slide. [applause] [laughter] the oldest emergency dates back to 1979 and was issued in response to the hostage crisis in iran. we are still in the hostage crisis. as a result of those declarations, the president has access to enhanced authorities that are contained in 123 different statutes addressing a broad range of subject matters from military composition to agricultural exports to public contracts. you can view an annotated list of those powers on the website. for the most part, the president is free to invoke any of those laws. national emergency act does not require the laws he invokes relate in any way to the nature of the emergency. the statutory powers that are
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triggered by national emergency declaration are supplemented by other sources of emergency authority, statutory sources. many laws allow the president or other executive branch officials to take extraordinary actions during specific conditions such as insurrections, public health crises or war regardless of whether a national emergency has been declared. still, other laws that significantly expand executive powers such as the patriot act were conceived as emergency powers and enacted to respond to major crises which sunsets to ensure review in calm her times. but they have blended quietly into the permanent legal landscape. and then there is the constitution itself. even though the only explicit ensure review in calm her times. but they have blended quietly crisis response powers in the constitution go to congress and
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not the president, any legal scholars believe that there is an inherent emergency authority granted in the constitution to the president by virtue of making him the commander-in-chief and the chief executive. the extent of any inherent powers and the extent to which congress can limit them is really a matter of ongoing debate. we will be hearing more about that from our lunchtime speaker, today. the supreme court has not done much to resolve the issue. a handful of rulings have revealed general principles but the president is bound by the constitution and he is on stronger, legal footing when he acts according to explicit authorization by congress and he can act against the will of congress only if congress has no jurisdiction over the subject matter. youngstown, you have now got your money's worth.
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within those printers the outer -- broad perimeters, the outer bounds of the president's emergency authority under the constitution remains ill-defined. presidents have leveraged this ambiguity in a series of directives known as presidential emergency action documents. they are drafted executive orders prepared in advance to anticipated emergency situations. they are very closely guarded and none of them have ever been publicly released or leaked but their contents have been described in some official public sources including fbi memos that have been obtained through freedom of information act requests and litigation. we know from those courses that between the 1950s and 1970s they reported to allow the president to declare martial law and to suspend habeas corpus unilaterally without congress
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and to round up and detain people who were on the list or index of subversives that were maintained by the fbi, which at one point included 10000 needs. we do know they exist and we do know presidential aides carry them wherever the president goes and we know they are currently in the process of being revised and updated by the department of justice. given the bevy of statutory emergency powers in the uncertain constitutional limits , you might expect presidents to muster emergency authorities at every conceivable chance. why not? but in fact, it is shown remarkable restraint. abuses on the scale of the japanese-american internment during world war ii or the cia torture program after 911 have been rare, albeit ever stating -- devastating in their consequences.
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moreover, the significant abuses have tended to rely on claims of inherent constitutional power, not on statutory authorities and even though some of them are remarkably potent. i was surprised to learn as a result of the brennan center's research that almost 70% of the statutory emergency powers available to the president upon declaration of the national emergency remain unused, 40 years after the passage of the act. yes, there are 31 states of emergency in effect. almost all of them rely on a single statutory authority, international emergency economic powers act, which we will be hearing more about soon. but, past is not always prologue. there is no guarantee this president or a future president will show the reticence of his predecessors or avoid the worst mistakes of history. to borrow a phrase from justice in cores dissent
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monsoon versus united states, each of the emergency powers lies about like a loaded weapon ready for the hands of any authority that can bring forward a possible claim of an urgent need. it behooves us to look closely at these powers and what they would allow. with that, i will turn the podium over. he is a legal and research fellow tech freedom and also an internet law and policy fellow and an expert at the federalist society's emerging technology working group and she will be telling us about a particularly potent emergency power in the realm of medications. -- communications. [applause] >> hello everyone. thank you, liza. it is an honor to be here. my piece of the puzzle today focuses on communication. in particular, if president trump has the internet kill switch in his hands.
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we all -- i think we all can agree that communications is one of the crucial things you want to have control over in case of a revolution, as history shows us. in case of a national emergency or crisis, if the worst was to happen, might that be north korea, russia, zombies, whoever comes first. communications and the internet these days is one of the major resources that will save lives and make sure infrastructure stays in place. now, before we go into what emergency powers exist, i have an important note for skeptics who are also optimists that they -- that say that president trump would not want to turn off the internet. even before the emergency powers back at a recently, rally in south carolina, he
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said, quote, we are losing a lot of people because of the internet. he was referring to online recruitment by terrorist groups. he continued, we have to talk about maybe, in certain areas, closing the internet up in some way. now, while presidents have abuse d surveillance powers before, america has never elected a man so andnly promised to do has said i want surveillance , referring to muslim americans. he also warns that certain things will be done that we never thought would happen in this country and that includes policies and i quote, were frankly on thinkable a year ago. the fact that this might happen is pretty clear. the obama administration back in 2010 set in a public testimony they believe executive branch already had sufficient emergency
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authority to require internet service providers to act as directed. they were citing section 706 of the communications act of 1934. it has been codified in section six zero six. now let's go from section 606. 606c talk about the creation of emergency applies to wireless facilities and allow the president to suspend or amend as he sees fit, for wireless devices to close any facility or station that is suitable for use as a navigational aid beyond 5 eize itnd sees it -- s for government use. now, obviously this is a very vague and broad power but a good example could be along the border with mexico. the towers could be shut down and not only can the towers on down, he couldut
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also switch fcc rules that cover jamming and shut down the mexican provider towers, too. if he wanted to extend his reach. it is unclear what the controlling legal standard would be if this is challenged in court. if it is chevron, government will probably win. if it is the youngstown , the government will claim that this is an express implied authorization of congress. the president's authority is at its maximum to include all that they possessed and all the power that congress has. now, the challenge that would be in the courts against this would obviously be the first amendment. we will not really know how the court will rule until and hopefully this does not happen but until that happens but if we look at the president there is a high possibility that it is 50-50.
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if we go to 606d, that is threat of war powers over wireless services. 606d says that the president can suspend or amend sec rules for wireline. the war obviously had to be acknowledged by the president. sorry, by the congress. but if it's 2019 now and there is a cyber war going on, they have enough of a wiggle room to say china, north korea, russia, whoever it is attacked us and we have cyber security attacks going on all throughout the midwest, or throughout california. so we have to shut down this part of the internet for now. just to keep citizens safe. the last part of this is 606a.
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forced privatization in wartime. now that is net neutrality reversed. i will not going to net neutrality. that is a discussion that gets everyone tends. but basically what would happen is, president would be able to prioritize certain providers or certain channels over others. in net neutrality, there's a big battle between if isps are common carriers are not. if people who support acknowledging them as common carriers would win, that would give president trump more authority and more clear pathway to do that. to prioritize certain traffic over others. is, when does this power apply? if you look at the case law , it strongly suggests the power only applied in the
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congressional declaration for -- declaration of war. but it's not entirely clear how the court would consider claims to such power under certain emergency events. we talk about cyber war and talk about national security threats such as terrorism and while this all goes up in the courts, parts of the internet will be shut down. obviously it's all hypothetical . but if you look at turkey and egypt, those events have happened there and last time i checked, our current president admires those leaders. there are existing safeguards in the law currently. rollback 606d powers upon concurrent declaration. but there is no such provision or 606a.
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potential reforms that we should look into is making sure 606a doesn't happen in secret. because there is a possibility we might not find out that some traffic is being prioritized over others. isps have no obligation to tell us. tracked unless you are looking for that. another one is making sure and naturalg the cases of -- national emergency and how communication can be regulated. so that basically means better , more bipartisan net neutrality reform and maybe that can be done in 2019. on that, i will wrap up and hope , we don't haves to use in any litigation in the future. and i welcome your questions. [applause]
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>> i forgot that i have to introduce the next speaker. i was so riveted by the presentation. our next speaker is william banks, professor of law at syracuse university college of law and the founding director of the institute for national security and counterterrorism along with steve and i guess, the author of the book "soldiers on the homefront, the drastic role of the american military." >> good morning. thanks to liza and the brennan center for including me in the program. timing could not be better, i daresay. i have got a few slides and i'm going to talk about --
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about the role of the military primarily and in particular the insurrection act. the slide there, you see a book jacket from something i wrote with steve a couple of years ago. those are soldiers from 82nd airborne patrollingbourbon -- airborne, patrolling bourbon street in new orleans for a few days after hurricane katrina. and it's a pretty good image to raise the specter, if you will of domestic involvement in the military and civilian affairs. the story i have to tell is a pretty happy one for the most part. i think the law that is here is a little bit arcane but has a lot of contemporary relevance. our tradition in the united states of not having the military involved in our civilian affairs is based on two fundamental precepts. one of them is born of our constitutional heritage, our revolutionary heritage, if you will.
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we were abhorred at the role of the heavy-handed english crown in our early american affairs. when we determined to form our own state and then our own government and then our own constitution, one of the most firm commitments that our founders could agree upon was to make it very difficult for the military to be involved in our civilian affairs. that found its way into the constitution and some provisions that liza has already referred to. i will refer to a couple of others. it's also found its way into our laws enacted by congress , including the insurrection act which is the main point. the second tradition, equally important in the united states and unique in the world, as we will hear this afternoon when we have a comparative perspective, is federalism. the notion in the united states is that if there is reason, justification for military involvement in our civilian
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affairs, those decisions should be made at the levels of government closest to the people , in the states and cities. our constitution reflects that tradition and the laws do, by and large, with a few historical hiccups along the way that unfortunately have contemporary relevance. the first constitutional slide is a repeat of a revision -- provision that lisa had up earlier. maybe you had a part of it. this is the so-called republican form of government clause. the sides are helpful particularly for those of you who don't have the constitution taped to your refrigerator door at home. this says that the republican form is guaranteed to each state, the so-called guaranteed cause to protect states against invasion, probably we will not
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talk or worry too much about an invasion and i don't think were -- we are being invaded from mexico and that is the invasion clause and to protect them against a mystic violence. that's a very important provision because it been -- has been loosely used in the centuries and decades since. notice there that the domestic violence qualifier in the garland t -- guaranty clause requires that there be a request from a state legislator or governor for federal assistance before those forces can be used. important feature of this mechanism, as you might expect from my opening comments, is to determine which part of government is entrusted to make the decision to deploy federal military forces domestically. we know internationally if there is a war, that if we are
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fighting it defensively, the commander in chief sibley goes on its own. domestically, that is not the case unless we are invaded. here, it is the calling forth clause in the next constitutional provision here . in this slide, calling forth clause in article one section eight, says it's up to the congress to provide calling forth the militia to execute the laws of the union and suppress insurrections and repel invasions. as liza mentioned in her opening , the militia is generally thought of to me in the armed -- mean the armed forces but today, some distinguished. i would distinguish between the contemporary national guard and the active duty force. we might talk about that distinction a little later but note that in this provision there is no express mentioned of -- mention made of an authority of the national government to respond to domestic violence. it's simply not there. that is important.
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we are now still in the constitution. so the clause does confirm that it is the congress, not the president, who authorizes the deployment of the military and responding to a domestic crisis. in the view of the framers, military force could be used to enforce federal law but only when the threat to the nation is especially grave such as acts of , treason amounting to war. that was a real probable fear in the early days of our republic. treason, amounting to war. the federal military force cannot be employed to suppress domestic violence. within a state without a request from the state. if you read those two causes -- clauses together the article , four, guaranty clause in the -- and the article one calling forth clause, if there's an invasion or insurrection against the national government and
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-- in modern settings it could conceivably be a major terrorist attack threatening to the nation as well as one or more states. the constitution requires that the federal government use military force to protect the state. however, in lesser events, the -- domestic violence, less dire sets of circumstances, probably more likely to be present by product of a natural disaster, for example, a less grave terrorist attack, possibly a public health emergency, the constitution presumes that the states can meet those circumstances on their own. bear in mind, we might save this for a q&a, governors have military force at their command. it is the modern national guard. the national guard are in their default role state officials, state soldiers, if you will and not federal.
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hereouple of other pieces getting into the statute. act, which ison the phrase or title that we know of the statute by today, it has been around since 1792. there's a version from 1789 and they were not called the insurrection act in those days. the calling forth act of 1792 . congress, right off the bat, said let's give the president some authority here. the triggering event was the whiskey rebellion. in pennsylvania. the 1792 version did give the president unilateral authority to deploy federal force in a state under circumstances where , that were sanctioned in the
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constitution, insurrection or invasion and to execute federal laws subject to a number of pre- deployment conditions. original insurrection act required that a federal judge agree to the need for the deployment and that requirement has gone by the boards. another requirement was that the president issue a so-called cease-and-desist order and might seem a bit archaic in the 21st century but the president had to proclaim that those who were in --ellion or were calling for requiring the use of military force should be asked cease-and-desist their activities. what happened over time, i'm conscience of the time here and i'll go quickly, is that things fell apart. during the civil war and in the years immediately after it, congress enacted broader authorities, the ku klux klan act of 1871.
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removed those earlier restraints on the president's authority and allowed him to expansively call forth federal military force, even in incidence in states simply to enforce federal laws without the retirement -- requirement of gravity or seriousness and on his call altogether. the 1871 law could have allowed him to respond to mere domestic violence without request from the governor or legislature. happened, there were minor amendments over time. it became the 20th century insurrection act. remaining on the day that hurricane katrina struck new orleans. what happened after katrina, this is an interesting story, lots of examples and no time to talk about them now but happy to talk about them later. the whiskey rebellion, school
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the segregation, how did we desegregatee -- arkansas and a number of other places? over the resistance of governor in arkansas for example. with federalized military force to go into allow black schoolchildren to find their way to school. a brilliant use of the insurrection act. racial violence in our cities in the 60's. the most recent attempt to use the insurrection act, 1992 response to the rodney king verdict in los angeles by president george h.w. bush. katrina,ened after even though the response to hurricane katrina was widely regarded to be failed and badly flawed in a number of ways, the military did better than virtually any other part of government in responding to the katrina disaster.
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nonetheless thereafter, president bush, with support of north,, soughtd an amendment to the act which made it modern but also easier still for the president to invoke its provisions. , whenn see their -- there the president decides to restore public order and enforce the laws of the united states, when he determines as a result of one of these triggering events domestic violence occurred to , such an extent that -- he could go in. republican governors in all 50 governors were opposed to this revision and every adjutant general of the national guard in united states reposed this revision. within a year it was repealed. we are back to the insurrection act we always had more or less . this is what it looks like now . it's essentially a codification
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of the provisions that i summarized before the hurricane katrina. there is a lot of authority here and it is not been often used and we might talk about when we get to the q&a whether it was an appropriate authority to rely on for president trump to deploy troops to the border a couple of months ago. thanks a lot. [applause] >> next, we turn to a professor sueaw and chancellor of so -- social justice. she is also the founding director of the interdisciplinary records center. is forthcoming with
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harvard university press. [applause] >> good morning. thank you for inviting me to this very timely conference. thank you to elizabeth and to erica and the brennan center team for putting together such an excellent agenda. also to csi f. tasked with -- is this going to work? keep going. [laughter] >> ok. >> you will run out of time. >> is this too far? [laughter] there we go.
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all right. thank you. i've been tasked with explaining something very simple, very easy. the international emergency economic powers act. authoritystatutory under which most of presidential emergency powers have been deployed or invoked and i'll talk more about how that is done . but just to give you a brief roadmap, i will talk about predecessor act, trading with the enemy act of 1917, and the financial sanctions that are a consequence of being a target of these kinds of executive orders. but is thessor of ie trading with the enemy back -- act which was passed in world war i. it was focused primarily on times of war and granted the president the power to restrict
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trade between the resident and -- the united states and his enemies. as a result, those who were targeted would have their property blocked and assets frozen and sanctions could be imposed and trading could be restricted and so on. what you find is during world war i, president wilson issued numerous deck locations -- declarations to take over the railroad industry, etc.. so it was a much more traditional, not dispute an emergency, wartime. however, during the great depression, congress authorized the president to declare a -- nationalrgencies emergency under peacetime. based on some pretty broad criteria. this is a sampling
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of declarations and executive orders. this is based on this. ,ou have president roosevelt 1933 bank holiday declaration which prohibited a run on the banks, selling of gold and currency. you have trumans 1950 communist aggression declaration which effectively declared that communism was a national emergency threat and that the -- as a result, he sent troops to korea without telling congress and took over the steel industry and other actions. in 1970 the post office exercised a massive strike as a result of congress giving itself a 41% raise and post office workers hadn't had a raise in decades. raise, so they said, we are not going to work. this was during the vietnam war
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when there was construction going on. there were soldiers in vietnam sending home letters to their families, not getting the mail was devastating beyond the normal set of circumstances. president nixon issued this under -- and the national guard was delivering mail and i don't know if the federal military as well but certainly national guard was delivering the mail. finally, nixon imposed tariffs on exports in order to preserve the currency reserve in u.s. banks. this is just an example. over time, ultimately it was used as an interim form policy and domestic policy and things that where congress started to question whether this was really an emergency. this is part of the lead up to the national emergency but -- is -- security -- emergency act. it is a very particular act that was meant to narrow the trading with the enemy duct. -- enemies act. there are two context.
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war tend to be the least controversial in terms of disagreeing about whether there's in a groups -- abuse of an exercise of authority. in peacetime, there's more controversy. for the lawyers out there, this is the language. in armederms are hostilities or has been attacked by a foreign country. so that is the triggering event. the consequences confiscation of any property or foreign person or country and i can include freezing of assets as well and it includes those not only with engaged in the hostilities and those who may aid and abet those individuals or those nations or organizations and that's where we get the counterterrorism context which i will discuss in a minute. here is during peacetime. the president during peacetime can deal with any unusual or extraordinary threat to national
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security, foreign policy or the source isn which the outside the u.s.. the substantial part outside the u.s. is where there's a lot of wiggle room and where you start to have domestic implication. in theory, in my law under the president is supposed to consult with congress before issuing these executive orders. and they are supposed report every six months after. that does not happen very frequently. the code is 1707 and the key component i think for those of us who are concerned about domestic rights and the way in which expansive foreign relation authorities creep into the domestic context, where at least
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legally speaking we have more protections and more individual rights. persons,ply to u.s. which include u.s. citizens and anyone legal status in the united states such that courts have construed the interest of the assets that are frozen and can be owned by wholly-owned by u.s. persons as long as there's a foreign national with a beneficial interest. i will talk about how that has affected the american muslim community and their charities and civil society organizations after 9/11. there is an exception. humanitarian exception. food, clothing, medicine. there's a waiver to the exception that is evoked so therefore it does not apply and can have devastating humanitarian effects when you're dealing with sanctions on iraq or syria or countries where there are civilians suffering
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tremendously and no one can do any type of work there without facing the risk of being designated, if not prosecuted. thus far, there are by my count, and i suspect this may be more , but there is at least 51 executive orders that have been issued since 1977 and 14 have been revoked and nine have been amended. it is in that range. this is a very powerful tool for presidents in a bipartisan issue -- presidents and it is a bipartisan issue issue. both republican and democratic presidents have invoked --. the targets tend to be foreign governments, foreign political parties, terrorist organizations, those suspected of supporting terrorist organizations. so even if you haven't been convicted of doing such, just being suspected of that and i'll talk about the due process in a minute but narcotics traffickers . so clinton issue one that addressed narcotics traffickers to columbia and then in 1995
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clinton issued a specially designated terrorist list to designate or freeze the assets and block property. its punishment because you're not outside the international system once the u.s. puts you on this list. no one can do any business with you. banks, individuals organizations, nations and ,. palestinian groups and jewish organizations. that was a tipping point in terms of taking it from countries to the nonstate actors. in 2001, present bush issued a specially designated global terrorist list and there were 27 listed. that list has grown. again, organizations, individuals and countries. opec is the office in the department of treasury that manages best. to give you an idea of how this has become a cottage industry.
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these to be only a handful of employees in the 1980's. now it's 150 employees. there's 20 different section -- sanctions programs. there is a 600 page list of blocked persons and organizations. the lawyers in the room, there's a lot of work in that area. just a quick sampling of executive orders as eliza mentioned. iranian hostage crisis and a slew of executive orders that were issued in connection to the hostage crisis. carter began that. reagan sanctions on libya and h w bush sanctions on iraq. i mentioned clinton and the middle east peace process. for bush he did that in order 13224. the one that most of us are familiar with which effectively sought to punish or sanction anyone that was associated. area wenot the a umf are talking about financial sanctions.
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used to punish those that the u.s. has determined are threatening stability or democracy promotion in particular countries that are deemed allies of the united states. the balkans, lebanon, congo, yemen, ukraine. it is fascinating how this is used to punish those who are not cooperating with our foreign relations. finally, i thought i would note. one of the obama executive orders was blocking property and persons engaging in malicious cyber activity. as cyber security starts to fall under national security, you start to see these types of executive orders as well. i will end with a very brief summary about something that those who do civil rights and civil liberties are concerned about. the due process with procedural due process. there are a lot of due process concerns procedurally speaking. there is no pre-deprivation notice in terms of when your
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assets are frozen and the basis of the standard is reasonable that opec will use. you get 15 days to challenge your designation and good luck trying to find a lawyer that will take such a radioactive case and also has the skills to take the case. also, the evidence is usually classified. the courts were quite deferential in terms of allowing the defense attorney to have access. there were some exceptions if you have a security clearance but that is tough to find anywhere that does. target has very minimal ability, if any, to provide their own counter evidence and to provide evidence in the dark. it is something you do not expect to be happening in the united states, frankly. many of us have written on it. finally i want to end and highlighting the devastating effect that it is had to lily on -- particularly on the counterterrorism on civil
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society. since 9/11, when you have this very low reasonable basis and congress that presumes guilt of over 6 million people by virtue of their religious identity, it is very difficult to challenge the adverse effects of this. what happens, you become a pariah. we have the three largest muslim charities shut down within four months of september 11. holy land foundation, and there has been many other smaller. meaning that if you're muslim that is trying to give 2.5% of your savings as part of your religious obligation and recall -- you can't do it. not to a muslim american nonprofits. the stigmatization effect has been devastating. the civil society is still recovering. this is a derivative the people don't think about in terms of having effect on people's lives . they don't want to associate with the organization or any
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muslim society and they also cannot practice their faith. with that, i will end i just want to put a quick plug for the center for security, race and rights. i think liza and brennan center for including me in this important conversation. thank you. [applause] show less text -- [applause] >> we will hear now from philip wallach. a senior fellow where he researches america's separation of powers with a focus on the relationship between congress and the administrative state. he was previously a fellow and then senior fellow at the brookings institution where he authored to the edge, legality, legitimacy and response to the 2008 financial crisis. >> ok. thank you so much for having me here.
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here to turn away from this dark talk about america being in danger by terrorists and war and turn to the much later topic of financial crises. we got plenty of excitement about a decade ago, where we saw a whole series of emergency come to the fore that we really hadn't been familiar with 1930's.e these are not public safety, you know. sort of have the idea that the constitution and our government is there to protect liberty and property. so when the financial system seems to be going down the tubes of our property is in danger, the federal government likely to swing into action. so... ahem. different actors
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from the government are going to come into play. is much less centered on the president, then, in the security context, because his role as commander in chief isn't really relevant. so i'm going to run through some of the different actors that we financiald to the crisis last decade. of draw some larger lessons from this context. all, is the federal reserve system. reserve normally can discountount loan -- window loans to banks that are in distress. during the financial crisis, it also has the chance to lend to non-banks, to non-member institutions. created by something called section 13-3 which dates
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the federal reserve act and it comes into exigentn unusual and ex circumstances. past -- in the past, the fed had not really used this all that much. it had during the depression. but it found really creative new it into effect during this past financial crisis really that nobody had anticipated. the way that it did that was that the federal reserve would create special vehicles, so special corporate entities. and it would then make loans to those entities, which would then and make further but loannot just loans guarantees and in some cases, or assets.urchasing
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was a wholly novel maneuver. it created a whole alphabet soup go into now.on't you can see on the slides some of their names. some were pretty effective in injecting liquidity into the system at a time when it really needed it. the phrase market maker of last describes been used to how the fed acted, sort of kept that wouldkets going otherwise have seized up. and it used these facilities to rescue specific institutions. 2008, it created some special facilities to sturns to allow jpmorgan itbuy it and therefore save from bankruptcy. in september of 2008, it was attempting to create some sort of facility like this to save
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lehman brothers but ultimately failed to do so. then it created special facilities to save the insurance company, aig. so people were pretty upset firm, specific bailouts that happened at the time. of crony it was sort capitalism. and in the dodd-frank act, congress prohibited the fed from to dosection 133 firm-specific interventions in the future. in the future, facilities created under these programs must be broad-based and multiple to institutions. it's not really clear exactly how much of a constraint that be. we'll sort of have to see next time around. and it's also worth saying that dodd-frank act said that in the future, this extraordinary
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with the only be used explicit approval of the treasury secretary. not have been a significant constraint during crisis.t chairman bernanke and secretary treasury and geithner worked hand in glove together. theit does ensure that political branches would have the chance to give the ultimate whether to use these powers. next one -- there it is. something called the exchange stabilization fund. and it was basically created to give the united states some shadowy currency warriors that would go out into -- could go into the external exchange market and make sure that the rapidly devalued. that was created in a different era, when, you know, we were
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trying to maintain the gold standard. and then in the woods era, when was pegged against gold, it's not really clear exactly what this fund should be that we are in an era of floating exchange rates. there.s it's many billions of dollars, billions of dollars and it's self-financing, with very little transparency about how it operates. it's been repurposed in many ways over the years to conduct foreign policyn ofectives, often in support mexico and most famously, before crisis, in 1995 when president clinton and treasury rubene figured out how to use it to bail out mexico. got a wholly novel application in 2008, in
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money market the funds were in distress. figured out a way to use this pool of money to guarantee money market funds, to guarantee that their value would not fall below par. so it very rapidly worked up this program. said, ha ha, this is ratese sure the exchange don't fluctuate too bad, because goes into the tube, that sure will create some exchange rate disruptions. of barely managed to keep a straight face while saying that. created wasram it extraordinarily successful. it never paid out a dime, because just having the guarantee there stabilized the markets. it actually brought in a profit. things that succeed don't tend to get so many political a good, so there's chance that none of you in the room ever even heard about this
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have thought about it in many years anyway. was somewhat miffed that the exchange stabilization fund had been used in this domestic way. precise usagethat in the future. fund -- it said the for money be used markets again, but it left the door open for further repurposing, so, again, we'll have to see next time. i won't dwell on this one, but fdic gets special powers during a crisis. usually, it is constrained to taking the least costly approach failing banks. with the federal reserve board and the treasury toretary, it does not need take the least costly approach. systemicrn an eye to
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risks. it used that in rather controversial ways during the crisis. finally, you know, i think it's important to remember here that the most important and potent emergency powers may well be that don't exist in the law today. emergencyreating new awers to respond directly to crisis can really act with the of all. potency so during the crisis, we saw them passed in july of 2008, the and economic recovery act, which gave this new body, fhfa, the power to oversee if necessary fannie mae and freddie mac, the did inencies, and they fact put them into in 2008.orship and, you know, most famously, tarp, whichsed the
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$700ed the potential for billion to support the banking system. wrap up now with a couple lessons that i take away, you know. of the most dramatic emergency responses to the financial crisis really did not the president. secretary paulson and chairman the faces of the crisis response to an extraordinary degree. second, congressional leaders doors did a lot to encourage bernanke and paulson. they said, well, go ahead and use the powers you have in your creative ways to the maximum ability, because we don't want try to do something through legislation and then fail. so you can come to us as a last resort. you go out and act strongly on your own in the first instance. it's also worth pointing out that as a matter of challenging
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responses, it's more difficult, because oftentimes the government is rather thans away taking them from anybody. so if you're giving things away, violating anyone's rights, it's harder to get standings to challenge those in court. finally, you know, it's interesting how little the cares aboutlly disregard of legal limits if the out well.ork oftentimes, actions taken that the letter ofrly the law were the ones that made and much more upset in 2008 2009. so i will leave it at that. [applause] >> next up is wendy parrment. is the george j. and kathleen waters matthews professor of law and professor of public policy and urban affairs at
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northeastern university where she's the faculty director on health policy and law. recent book is the forth policy and the case global solidarity. much.nk you so thank you, liza. and to the conveners. part ofly honored to be this very important and timelydinarily discussion today. have been talking about public emergency powers with an emphasis on the quarantine power. i will note at the outset that publicre a lot of other health emergency powers we could talk about and maybe we will at during today. oops! this is very sensitive. think it's with, i undenial that infectious can cause emergencies
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no matter what the definition of term. and in 1793, the yellow fever outbreak in philadelphia, which was then the u.s. capitol, theed over 10% of population and led to the enactment of the first federal quarantine statute. in 1918, the influenza pandemic 600,000 americans and millions, millions more worldwide. this reason that our laws havefederal given officials very robust individualimit liberties and do things that would otherwise not be orsidered constitutional appropriate, in order to prevent the spread of infectious diseases. and the courts, as this quote of jacobson5 case versus massachusetts, have for
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most part supported the idea that governments could have extraordinary powers to prevent of infection. now, there's a wide range of powers.blic health i'm going to talk about them in a moment. but i want to make a few points outset. first, they don't always -- they don't usually require an emergency declaration. rather, federal and state laws give health officials unfetteredst discretion to take action to prevent infectious diseases, even in the normal course of events. and courts are generally very reluctant to second-guess health officials. also, we should note that these oftenr these actions are if not usually ineffective. good in't do a lot of preventing infections, not to
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they're never appropriate. but more often than not historically, they have not been. they stigmatize individuals and populations. they actually can make matters worse. and they are frequently abused targeted against already vulnerable populations. and i just want to note that they are widely applied against immigrants and people who are considered the "other." picture at the top is from -- is a picture of h.i.v. positive haitian refugee, kept statesmp that the united kept at guantanamo bay, cuba, in the 1990's. were refugees who were otherwise cleared to be admitted into the united states. behind barbed wires indefinitely until the down.shut it ostensibly to keep out h.i.v., a
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was alreadyh extraordinarily widespread, in effect endemic within the united states. there's no public health reason. this was not actually done under the quarantine power. under thee immigration authority. but the two are often used together. note that want to president trump has already dangers of contagious disease as another rational for the wall. was also quite an advocate of travel bans during outbreak. so what are these powers? used qoal kol lown refer to -- to refer to other powers. used against someone thought to be exposed to notunicable disease but actually known to be contagious. isolation refers to someone who a communicablee
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disease and who can spread it. isolation usually, not always, a hospital session concomitant with treatment, and for that reason tends to be less quarantine.l than a sanitary quarantine which president bush spec speculated t is ato be applied in 2005 quarantine that separates a geographic area. closely related are travel bans, which can be interstate, international or intra-state. critically, the use of these powers do not usually require any emergency declaration. powers most part, these have been employed in the u.s. primarily, at least domestically, not in the immigration context, by the states. but since the 1790's, the exercisedvernment has quarantine authority at the border. 1990's, we have
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increasing concern and about the danger of emerging infectious diseases s.a.r.s. and or the dangers of bioterrorism, there have been many calls to see infection as a national security problem and to increase role.deral there are many statutes in the u.s. code that provide for public health emergencies. tot of these do not relate interventions.tical 247d is the general statute. i'm not going to go through it because of time. want to mention right now is that the statute provides criteria for what needs to be found in order to declare a public health emergency, an emergency exists if the secretary decides that an emergency. the federal quarantine power is,
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the publicn 361 of health services act. it authorizes the federal apprehend, detain or conditionally release individuals at the border or the country if they are going to cross state lines or transmit a disease to someone crossing state lines. that means anybody. points about the statute. first, it is -- the authority is preventing diseases that are on the list of so-called quarantinable diseases. get back to that in a moment. secondly, no emergency declaration is required for the limitedt except in a sense for apprehending people domestically who are not yet contagious. and detentions can be indefinite. provides for no review. this is the current list of quarantinable diseases. the list is set by executive order. there is nothing in the statute
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that prevents the president by executive order from putting the the list.d on no president has district done . the list up there right now is not very controversial but, would allowtatute very broad use. should note the same list applies to creating forudable diseases immigrants. so people who have these noncitizens are also excludable. regulations,ntine on their way out the door, 19, 2017, the obama administration published new quarantine regulations. they're complicated. permit -- they require increased reporting by airlines of ill passengers. they permit public health prevention measures through
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noninvasive means, surveillance, temperature scannings at airports, railway stations, et cetera. not necessarily tied to quarantinable diseases. so if c.d.c. decided they wanted check if anyone had seasonal flu at reagan airport, they could. the indefinite detention, condition release and bans of anyone reasonably believed to be infected with a quarantinable disease in a qualifying stage entering the country, crossing state lines, infect someone crossing state lines. to they authorize c.d.c. require medical exams of people so held. due processme procedures set forth in the regulations. they're not nothing but they're not a lot. and most importantly, there is ofprovision for final review an independent decision maker. neither the regulations, norably because they can't, the statutes -- it could -- provide for judicial review.
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haynhabeas corpus is probably te out.way there are significant constitutional issues raised by these. scholars and experts think that detention should only be the leasten it is restrictive alternative. some should say that in litigation, post the ebola quarantines which were by the the federal government, the court said that the constitutional rights of quarantined were not clearly established and dismissed the cases on the basis of public official immunity, qualified immunity. on where few thoughts we can go from here. it's possible to write statutes the give the government power it needs to respond to public health emergencies the power asg completely unfettered as it is
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moment. i provide some thoughts up here. some of them obvious. a little arcane. i'll just mention ebollishing quarantine -- abolishing the exception to the quarantine be applied tould any random individual detained. have --w officials there's no accountability. no one has to worry about it. allowing for post-detention litigation would at least provide some disincentive. the real problem, and i think it might be the real problem for suggestions people have, is how do we actually get do some of these reforms which would maintain our confront emergencies without inviting the kind of that at least in the area of public health emergencies has been so common historically? you. [applause]
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started late and we're running long. here's what we're going to do, just in case anyone else is looking at their watch. after i speak, we will have only for q&a, which i apologize for, but i had to make that adjustment both for to adding purposes and in some last-minute material about the border wall, because i thought you might want to hear that. and so then we'll have 10 minutes and then take a five-minute break. anybody who, of course, needs to step out during the q&a, please feel free. then we'll start the next 10:55.t plan.ill be the so this is where we had planned to turn to audience q&a. however, the president's threat to declare a national emergency the wall atbuild the border happened after we had
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finalized the agenda. so we were unable to add an entire new panel for that, which have loved to do. however, this seems like a fitting place to -- in the discuss what authorities the president has or doesn't have to carry out his threat. as you've heard, declaring a national emergency gives the access to some pretty formidable legal authorities. it does not give him the power do anything he wants. he's limited to the authorities congress has provided. the twog to speak about main authorities that the president might attempt to a nationale declares emergency in order to build the border wall. a few preliminary points. uncertainme, it's whether president trump will declare a national emergency. tois now saying he wants wait to give congress time to act. that's a very significant it gets theecause entire principle behind backwards.owers the central purpose of emergency powers is to give the president
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to standby authorities in situations where congress doesn't have time to act. if congress does have time, then justification for dispensing with the ordinary democratic process. asking theople are question, can the president declare an emergency if no emergency actually exists? so to save time, we're going to assume there's not an emergency the border. that's another conference. unquestionablyis an abuse of power. for the president to declare an exists.y where none it's particularly abusive here, because the purpose is to get of congress.ll and to get around the thatitutional requirement congress appropriate funding for executive branch action. view,rom a legal point of the national emergencies act places no limit on the aesident's ability to declare national emergency. it includes no definition of thatency and no criteria
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have to be met. that omission makes a legal an emergency declaration difficult. it does not make it impossible. evidences sufficient that the president is acting in bad faith, for instance, with to circumvent constitutional constraints, courts might be willing to step in. high bar but it's not insurmountable. gambit ofe, the declaring a national emergency could succeed only if there are authorities that give the president the ability to build the wall. there are two authorities that most likely tos rely on, both of which give the secretary of defense the a nationaln emergency to move money around within the department of defense. 10usc2808.s this law says that during a national emergency that requires the armed forces t secretary of defense may
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undertake military construction projects not otherwise authorized by law that are necessary to support such use of armed forces. and he's limited to using unobligated funds that congress for --eady proat yaited appropriated for military construction. look promising for the president, but on further review, there are several sticking points. first the emergency has to be one that requires the use of forces. dhs has been constructing border for years without any help and there's a good argument forces isusing armed not required. judges do have a tendency to defer to presidents on questions about the military necessity of particular actions. however, even if judges were to defer to a president's assessment about whether the use of armed forces are required the military construction project must be in support of forces.of the armed so to give an example of that, if a national emergency required
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deployment of troops overseas in an area where there military existing installation, this provision could be used to sort of borrow to build temporary facilities for those troops. but here it's really the other way around. military is being used or would be used to support the of the fence, not the other way around. and that's a strong argument for why this law wouldn't be applicable in these circumstances. the statutese's definition of military construction. if we look at that definition, it strongly suggests that eligible projects have to relate to military installations which would not be border law, athe least the way circumstances stand today. in short, there are several a judge might find this law does not authorize the construction of a border wall during a national emergency. let's move to the next authority under reportedly
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consideration which is 33 usc 2293. secretary ofhe defense to divert resources from existing civil works projects that he deems not essential to the national defense and to resources, including funds, personnel and equipment, civil works, military construction and civil defense projects that are essential to the national defense. this gives the president a bit more breathing room in the sense that the emergency can be one that may require the use of armed forces. projects don't have to be in support of that use of armed forces and the projects can include civil defense projects as well as military construction projects. the issued still be of whether building a wall is essential to the national and even assuming that judges will give the president a substantial amount of deference
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point, there's still one major hurdle for the president in this statute. the previous statute gave the secretary of defense permission military in construction projects not otherwise authorized by law. allowsatute, however, the secretary to divert resources only to projects that are already authorized. when the executive branch takes action, it generally needs two things from congress. itneeds authorization and needs funding. this law might provide the funding but it doesn't provide the authorization. the president would need to find that elsewhere. where's far from obvious that would come from. the bottom line is that even if ae president were to declare national emergency, even if the courts were to let him declare a ational emergency, it's not all apparent that that declaration would give him the authority that he seeks. i'm going to exploit my thisgative as cohost of event to conclude with a bit of bitorializing, i guess a
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more editorializing, i should say. the next time trump or any other decides to declare an emergency to get around congress, he might find some that fit the books what he wants to do. and that would make challenges in court much harder. if we truly want to minimize the chance of a president abusing emergency powers, the best way to do that is for congress to revise the national act.encies for discussion purposes, i will make two suggestions. arst, congress could provide very broad definition of emergency. you lur --n granular. enough to give presidents enough to apply. state, when the initial of emergency lapses, renewal should be up to congress, not the president. time, congress will have had time to deliberate and there tol no longer be a time short circuit the democratic process.
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with that, i'll open this up to questions from the audience. please feel free to direct your usstions to any or all of who have spoken this morning. please try to keep your questions short and in the general form of a question, and we will also try to be brief in our answers. thank you. [applause] >> so -- am i on? ok. somebodyise your hand, will bring you a microphone. i'm going to start calling on people. sir? oh. ok. >> sorry to be so topical. presentation on the wall, one piece is missing. and that's about land. how does the president go about
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obtaining land? any authority -- is there statutory authority? statutory requirement, at least applicable department. well, i think across the that obtaining land has to be authorized by congress. so... i throw it to you. >> so the quick answer to that to national emergencies, there actually are not any powers in the national that wouldool kit help him in that respect. so whatever powers would be anilable not during emergency for him to seize land using eminent domain or know, authority he intended to use, and as you haveed out, he needs to authorization from congress, would be the same ones that he would have to use in the circumstances. the national emergency framework goes back to my point that it
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authorities.anced it doesn't let him do anything he wants. so that's not gonna help him of seizing land. it's more with the funding the funding mostly. >> continue. >> ok. chris, i think you had your hand up back there. >> thank you. this is really useful. all the panelists. you've written wisely, in a these topics.ut i wanted to ask you -- of course, what you're saying makes about revising the law. for now we're stuck with what we have. points. some smart i want to ask, though, there is as you mention, another mechanism under the law. congress could act. i know the bar is high. but what do you think about that possibility, if the president declaration, a congress's role? act.ngress could congress, under the national emergencies act, congress can pass a joint resolution to end
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of emergency. as i pointed out before, that would be the -- would need the signature, so in order to actually turn that into aw, congress would need majority. proceduresxpedited for that. it would get a vote. it would move fairly quickly. positive aspects and i think it's worth doing, even if there's no chance that it's ever law. to become it is worth doing. it would be such a powerful to take afor congress vote, for the house to potentially pass legislation to terminate a state of emergency, that has never been done since the passage of the national emergencies act. and i actually wanted to ask one question of bill, because it was a question i was thinking about when you were talking. and it may be on the minds of are just too shy to raise your hands. that question was, how does the interaction relate to this, and some wayit not in
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violate that, and what is that? >> let's start with the last question first. what is this latin phrase that literally translates as power of the county. when you hear it, in common parlance these days, talking about states of emergency, it involves the principle. military should not be involved in civilian law enforcement. 1876.een around since criminal law, of all things. one's everbeen -- no been subject to prosecution. but it establishes a baseline like our that we don't soldiers engaging in law enforcement activities, so it applies at the border. applies everywhere that the military may be deployed. ask myself even an earlier question. what's the authority for the military to be at the border? i was asked this question a number of times in the fall. and there's this thing called the cabinet order that former
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general kelly issued in the president's day.ce one i've never seen a cabinet order. i don't know even know what that a species of law. maybe we should ask bob. but there was no authority designated in the cabinet order or anywhere else for the deployment of the military to the border. they didn't follow insurrection act procedures. they aren't involved in law enforcement activities. they're certainly not carrying weapons. they're providing what logistical support, building roads, delivering medical equipment and the like. that's fine. but there are 22,000 personnel perfectly capable of enforcing the laws at the border. the act has this criminal on military serving in law enforcement capacities.
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does have something in it that says, except as provided by congress. >> that's right. the insurrection act an exception? >> it is, if it were to be invoked. has not been invoked. >> back there in the red. >> hi. gentleman from r. street. the next financial collapse is right around the corner. and what are you all -- are you be done?ng at what can we injected all of this. it wasn't just the americans. got 14 trillion with the japanese, the british that they markets toto the keep them up. those are being divested slowly, slowly. go down that road again. this has just been kicked down the road. whate you all looking at can be done? and also, the i.m.f., their role in all of this mess. >> that's a big question.
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i think it's somewhat nongermane conversation. i'll give a fairly brief answer. changes to think the american regulatory law and to international banking standards, of that has been worked on since thesively crisis last decade. most experts in the field believe that the the higher and capital requirements that banks are subject to leave us in a situation today. a lot of economists would say 2007 and happened in 2008 was not just a once in a generation but once in a many generations financial shock that's unlikely to occur. having said all that, you knows.obody i think there was a long quiet
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in american history, in the middle of the 20th century, were not soisis to that time.ior century,t the 19th there were really a lot of devastating financial crisis in in americancrises history. congress would tell you they think that the financial regulators are better equipped to do, because of dodd-frank, to next financial crisis. obviously you're shaking your head. we'll have to leave it at all. >> we have time for one last question. victoria? >> so, yeah. a quick question for everyone on the panel. counting your own presentation, who else's presentation worried you the most or gave you the most concern about the potential for abuse?
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night.s me awake at >> everyone else gets to answer too. >> grab your mics, folks. otherwise it won't work on the recording. health.c [laughter] >> i'm actually more worried about the economic powers, just the leadership we have right now. i think they like invoking those. >> i'm concerned about the normalization after of the use of the uselization of u.s. military in the united states, particularly because i study tho authoritarian regimest broad. you hit the tipping point that it becomes normal, it's very difficult to reverse. of the internet, because i think the person who flowols the information controls everything else. >> and i would say control of the internet as well. one of the points that he raised
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is that the provision to take over wire systems communications, which would be justnternet, applies not when we're at war but when the president proclaims a threat of war. that is so amorphous, it can be done at any point. even though i think it's unlikely thaty this president would try to shut down the whole internet, you can with muchf damage more tailored interventions with the internet, including ones like prioritizing communications that wouldn't necessarily even have to be public. so that's mine. but i think we have to stop there. thank you so much. we will have a -- i don't know -- like a four-minute break. [laughter] >> i'm sorry it's so short, but a lotise there will be more time around lunch to get your lunch and later in the day, longer breaks. thanks for bearing with us. [applause]
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[captions copyright national cable satellite corp. 2019] administration officials discuss specific examples of when presidents george h.w. bush and barack obama used emergency -- george w. bush and barack obama emergency powers during their presidential terms. this portion is just over an hour. [applause] >> thank you. as we're passing out timephones, i'll take the to introduce my distinguished panelists. it's an honor to be here with them, many of whom i've worked with in the past. is troy, the me vice president of public policy at jewell lance. that -- jewell labs. he's literally written the book


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