Stuart M. Gerson, Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm’s Washington, DC, and New York offices, testified before the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties on the 1976 National Emergencies Act and the constitutionality of southern border wall national emergency declaration. Footage of the hearing aired on C-SPAN.

Following is an excerpt:

I’m a lifelong Republican. I’ve been a republican longer than some of you have been alive and I’m a conservative republican and I enjoy the support of a lot of conservatives with respect to the position that I’m taking today.

Indeed I’d take that very position if I agreed with President Trump with respect to his desire to build a contiguous border wall. I don't. I’m a tech wizard and know a lot about what DARPA has done since Vietnam in creating technical means and I like those a lot better, but I don't favor open borders, and I don’t know anybody here that does either.

And so I’m here as an advocate for the constitution. And in fact I agree with 95% of everything that I’ve heard from everybody so far and I expect that to continue. Mr. Johnson, professor Turley and I disagree as to one point and that is with respect to the ability of a neutral, of a judge, to determine an emergency. But in terms of the history, we don't disagree at all. And I was as much a critic of acting contrariwise to congress by the executive in the previous administration as I am presently. As I say, even if I agreed with the president I’d have the same position. Your job is to revisit the act and I am hopeful and expect that you will do it, and in so doing that the congress will stop acting like a parliamentary body and will act as what James Madison, Alexander Hamilton, and the other framers intended which was an adversary to the executive branch.

This goes back even in my lifetime to the 1940s and it has been a continuous trend. And I say that as somebody who represented the first Bush administration arguing in court all the way up to the Supreme Court about the president's war powers. Different from what we have here, but certainly this entire case cries out for the definition of what constitutes an emergency, where a president can act and for how long.

Why I think a neutral will be able to decide this question, notwithstanding my full agreement with professor Turley that the way the act is currently written looks like a turducken, if I can give you a Louisiana reference, of things slapped on one another, eliminating old emergencies that persisted for years. The reason why I think that a court will be able to do that is that I don't think you can be the referee of your own game and I don't think that using just the textualist tools that I believe are proper when I support the judicial nominees of this administration, which I generally do, that emergency requires a definition. It’s got to be an exigency some kind, unplanned, sudden, that requires action in a time frame too short for the two political branches to confer and act.

That’s similar to what other witnesses have had to say. One can argue about the language, but I think we know what an emergency looks like when we see it, if I can paraphrase Justice Stuart. And that's what I’m asking you to do as far as the litigation goes and our ability to challenge the act, I’m comfortable with the positions that we're taking. It’s a coalition of organizations left, right and center, none of us views it as political. It’s simply that we believe that it's constitutionally impermissible for the president to take action in what really is a nonemergency when the congress has already spoken and told him not to do the very thing that he's doing. Like in a sport. The constitution intended that there be winners and losers and something ends a particular dispute. In this case what should have happened, was congress should have the last word, but the definitive word. I am happy to answer your questions. I respectfully ask that my prepared testimony be a part of the permanent record of this hearing.

Related reading:

Courthouse News Service, “Lawmakers Urged to Rein in Executive Emergency Powers,” by Tim Ryan.


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