Statement from me and from mr. Cole then well go tow our distinguished witnesses. Today the rules committee will hold a hearing to discuss how the constitution separated powers between the legislative and executive branches and how the balance of power between these branches has shifted over time. We are doing this in the hopes of finding concrete Bipartisan Solutions to better ensure congress is playing the role our nations founders envisioned. Thats a lot, i know. And while a constitutional debate may be fun for law students and legal scholars and mr. Raskin [ laughter ] the it wasnt fun when i was yeah. For the rest of us, it could feel a little in the weeds. So, so for the rest of us, let me simplify. You know, we throw around the phrase, the peoples house, a lot around here, but this really is but this really is about whether we remain the institution that our nations founders created to be the voice of the people. The constitution entrusts congress with deciding how to spend federal resources and develop policy for the entire nation on everything from health care and Energy Policy to trade and our nations farm policy. It also entrusts congress with the very important job of determining when to commit the nation to war and to put our Service Members in harms way. These important tasks were put in Congress Hands because we are the closest to the people. Each senator represents an entire state, but each of us in the house represents roughly 700,000 constituents. We are on the ballot every two years. This puts us closer to the people, their worries, their needs, their frustrations, their hopes and their fears. It makes up more responsive to them. Because our founders determined that some important tasks demand direct input from the people. The president , the head of the executive branch, has important powers, too. Among them is implementing and enforcing the laws that congress enacts. They face regular elections as well. Since there are no kings or queens in america. But sometimes, president s of both parties have overstepped and gone from enforcing policy to creating it in ways that our founders never imagined. Every time that happens, the power of congress, the peoples power, is diminished. That is what weve seen for the past 20 or 30 years now. President after president has taken more and more of the power traditionally vested in the congress. The question is whether we are going to itch lmplement reforms take our power back. Across our hit we, weve seen congresses do just that like in the 1970s when the war powers resolution, National Emergencies act, and the arms export control act among other reforms were enacted to rein in president ial p power. In the 1990s when Congress Passed the congressional review tookt provi act to i think the time has come for congress to push back once more. Not to rein in a particular president but to rein in all president s. Thats with pan s at the end. Well, i think this is the perfect time to do it. Were in an election year. We dont know who the next president will be. But what we do know if history is any indicator is the next president is not going to have an epiphany and just Hand Congress its power back. We need to seize it. If the next president is republican, i know ill want to assert my full Constitutional Authority and i guarantee that if he or she is a democrat, my republican friends will, too. This is bigger than who will win the next election because when the executive doesnt consult with congress, doesnt notify congress, doesnt submit to oversight by congress, sends our troops into harms way without congress being part of that discussion, its not just this institution thats on the losing side of the tugofwar, its our constituents, the people we represent. Those people are the ones who lose. So before we introduce the witnesses, id like to discuss or format today. Our panel does not consist of majority or minority witnesses. The witnesses have been called who have been called to testify today have been called by our Ranking Member and me jointly and we relied on the Congressional Research service to help us with Background Materials because we wanted just the facts. Next, while we will ask our experts to keep their opening to five minutes, our members are free to ask questions for as long as theyd like. Brevity is always rewarded, but we want to make sure that our members and our witnesses have ample time to discuss the issues. For the sake of this hearing, i would like to think there are no democrats or republicans. Finally, the only reason why we have been able to maintain a bipartisan approach, and i want to note just for the record is because of our Ranking Member, mr. Cole, and his very talented staff. And you continue to be a cl collaborative and helpful partner, and i so appreciate you and your commitment to this house as well as, you know, my staff and the members on both sides here. So our hope is that this process will help us find opportunities to reassert Congressional Authority that both sides can agree on. And having said that, im happy now to yield to our Ranking Member, mr. Cole, for any remarks that he wishes to make. Thank you very much, mr. Chairman. Vy a ci have a couple off the c remark s before i get to my prepared remarks. Normally when i come to this committee, i walk in thinking its 94. Today i think its 130. Because, frankly, whether youre a liberal democrat or a conservative republican, whichever side of the philosophical or partisan divide youre on, i thing theres probably a common sense throughout congress, honestly, not just on this committee, that theres been a many dedecadesg erosion of congressional north own theres time to do something about it. Were also 130 today because were all students and youre the instructors. In fact, some of us did our homework this weekend. I noticed mr. Perlmutter cramming right until the last minute. He was reading the testimony. And all of us probably are a little bit of awe, mr. Raskin, as the chairman pointed out, hes academically on par with all of you. But were very grateful for your participation. Mr. Chairman, let me add, againing iagain, im very grateful for your relationship. You established the rules committee as a model of civility in congress. A role for us, one we proudly claim under your leadership. Todays original jurisdiction hearing covers what my view is one of the most important issues face congress. The scope of Congress Power under article 1 of the constitution and the impact of separation of powers on governance. I want to thank chairman mcgovern for arranging todays hearing. Though the chairman and i disagree on a lot of things, Constitutional Authority entrusted to congress is not one of them. Indeed, we were both equally concerned about protecting Congress Power under article 1 of the constitution and were both equally concerned about the erosion of that authority over the past several decades. Though the shift has been gradual, congress has not only ceded its authority at times but presen president s of both parties have also claimed powers that belong to the legislative branch. The constitution very clearly vests all legislative power in the congress of the United States. And all executive power in the president of the United States. This was carefully crafted to create a system of checks and balances that prevents any one branch from becoming too powerful and allows our republic to thrive. So why, then, does congress over the years consistently allow the redurks ction of its own author . Im hopeful our Witnesses Today will shed some light on this and discuss where practices of the past went wrong. I think probably all of us as practicing politicians and legislators have some pretty interesting thoughts on, again, where we see weve fallen short, in many cases, of living up to our own responsibilities. With todays hearing, we will hear from four experts who allow us to put all of this into perspective. We will hear about the constitutional provisions affecting both the legislative and executive powers. And we will hear testimony on the history of how this has all unfolded and hopefully hear recommendations on what congress can do to reclaim its authority. At the end of this process, we may learn that there really is Nothing Specific Congress Needs to do to reclaim and reassert its Constitutional Authority other than act decisively to do so. And utilize the tools currently available to us. Or we may discover that substantive changes do need to be made. Either way, im hopeful that congress can act in a bipartisan manner to effectively use the legislative power should it choose to do so. Todays hearing of the rules committee is an important first step in making that goal a reality. Finally, i want to invite us all to remember and ponder this. When our founders envisioned the grand american experiment and put pen to paper on the distribution and separation of government powers in the u. S. Constitution, they first described the powers entrusted to congress on behalf of the American People. Indeed, perhaps, the greatest power of the legislative branch established in article 1 is how closely connected it remains to the views of the nations citizens, as my good friend, the chairman, pointed out. With that, mr. Chairman, i want to thank you, again, for calling todays hearing. I want to thank our witnesses for being here today and for sharing their insights and expertise with us. I want to thank the staff on both sides of the dais for their hard work in putting this hearing together. Thank you, mr. Chairman. I yield back. Well, thank you very much. Im now delighted to introduce our panel of witnesses. Matt spaulding is the kirby professor and Constitutional Government and dean of the van andel graduate school of government as well as the Vice President of washington operations at hillsdale college. He is the bestselling author of we still hold these truths rediscovering our principles, we claiming our future. Also executive editor of the heritage guide to the constitution. Deborah pearlstein, director of law and codirector of the center for constitutional democracy at c rerks redozo sch. She served in the law and Public Affairs program at princeton university. Laura delmonte is professor of history. Dean of Virginia Tech college of li liberal arts. Author of is the queselling th way. Served on the u. S. Department of states Advisory Committee on u. S. Historical documentation from 2009 to 2019. And cy prakash, james monroe professor of law, senior fellow at the Miller Center of Public Affairs at the university of virginia. Also taught at princeton and the university of San Diego School of law. He clerked for Justice Clarence thomas. And i just oh. Yeah. And thank you, again, for all for joining us. Im going to begin with myou. Youre recognized for your testimony. Good morning, chairman mcgovern, Ranking Member cole, and members of the rules committee. Thank you for the opportunity to participate in this hearing on how Congress Might reassert its Constitutional Authority and redress the current imbalance between the executive and legislative branches. I appear before you as a scholar who has studied the history of the United States for over 30 years, particularly the history of u. S. Foreign relations. Ive spent my career explaining how and why the role of the u. S. Government has shifted over time. In my Academic Work and publicfacing scholarly activities, i have tried to present passionate explanations of the machinery of government, actors who affect Public Policy change, and the reasons why certain events and individuals arise. My key aims today are to place the current state of affairs into Historic Context and to stress that the present imbalance between the executive and legislative branches is a result of a decadeslong shift, not a recent turn of events. The United States has one of the most brilliantly conceived and enduring frameworks of government in the history of the world. The constitutions articulation of separate powers for the three branches of government is the very essence of that system. A reflection of the framers fears of concentrated power. In preparing this testimony, i have reflected upon the final day of the Constitutional Convention in 1787. Eager for news about what type of government the framers had created, a crowd waited on the steps of independence hall. When Benjamin Franklin appeared, elizabeth willing powell, the hostess of one of philadelphias bestknown political salons and wife of the citys mayor, asked franklin, what do we have . A republic or a monarchy . He famously replied, a republic, if you can keep it. We as a nation are at a critical juncture where substantive action is needed if we are to keep the democratic republic the framers envisioned. The fact that you are convening this hearing is proof that you also recognize that. I am honored to be part of the discussion. Dr. Spaulding . Chairman mcgovern, Ranking Member cole, members of the committee, thank you for inviting me to testify to the committee on rules. Like many of you, im concerned about the decline of congressional power relative to the modern executive and hasten to also add this is not a recent development. During this administration, the Previous Administration or many before that. My opinion, are simple tfr sympy of a decadeslong change in American Government of administrative rur administrative rule. Relationship between the increasingly powerful executive and weakening legislative branch seemingly unwilling to exercise its institutional muscles. My testimony makes three general points. First, the old ways of Constitutional Government have been replaced for the most part by a new form of bureaucratic rule. The rule of law based on consent. Three separate branches each with distinct powers, duties and responsibilities. Separations of powers to prevent the concentration of power. Encourage cooperation for the common good. The basic power of government is . The legislature because the essence of governing is centered on a legitimate authority to make laws. Congress most important power is control of the governments purse. As a check on the executive and the authority by which the legislature shapes national affairs. The president s vested with unique constitutional powers that do not stem from Congressional Authority. This is especially the case when it comes to war and National Security. The executive power is not unlimited, however, as the grant of power is mitigated by the fact that many traditionally executive powers were given to congress. This system was further divided between the national and state governments and system of federalism, leaving ample room for selfgovernment. The practical result was the United States was centrally governed under the constitution but administratively decentralized the state and local level. This began to change after the civil war when progressives advocated more administration in a new form of governing they called the Administrative State to remove or circumvent structural barriers and make government more unified and streamlined. President s of both Political Parties, Theodore Roosevelt and woodrow wilson, if particulan p advocated expanding the executive branch. The most significant shift in this balance of power occurred more recently, in my opinion, under the Great Society and its progeny in both parties. Agree with the policies or not, this expansion of regulatory activities on a societywide scale led to a vast new centralizing authority in the federal government and a vast expansion of regulatory authority, in particular. My second point, both congress and the presidency have adapted to these new ways but in the legislative executive battle to control the bureaucratic state, the executive has a distinct advantage. Congress was the first to adapt itself to this process by increasingly increasingly turned to backend checks such as the legislative veto that the Supreme Court declared unconstitutional, and has come largely to focus on postbudgetary oversight and afterthefact regulatory relief. The rise of the, what i like to call, the neoimperial presidency should not be that surprising given the overwhelming amount of authority delegated to decisionmaking actors and bodies largely under executive control. As Congress Expanded the bureaucracy, creating agencies, delegating lawmaking authority, losing control of details of budgeting, focusing on post hoc checks, the executive has grown and this is the general add to this the general breadth of executive discretion, as well as sometimes poorly written and conflicting laws, the modd mode executive can lead the bureaucracy to the president s policy ends with or without the cooperation of congress. And in this competition to assert legislative or executive branch control over the Fourth Branch of government, the executive has a distinct advantage because administrations, hamilton reminded us in the federalist papers, is inherently executive in nature. My last point, the proper remedy to this imbalance is for congress to reassert its core legislative powers. First, Congress Must reassert its legislative muscles not to paralyze the government but to command it. The courts are not going to solve the larger problem. And i think congress is on stronger ground when it desseer its core legislative powers. So, for instance, using the budget to control executive warpowers. Second, congress as much as possible should cease delegating the lawmaking pow and should not flinch from using its legislative powers to reclaim t it. Congress should insert itself more in the regulatory budget, through in order to restrain the executives. Especially the day to day back and forth, budgeting, overseeing the government, will do more than anything to restore article 1. Congress rejects, for instance, Congress Needs to narrow the discretion through statutes that are clear, precise and unambiguous. Fourth and last, congress is at its strongest, ibelieve, when it exercises the power of the purse. Strategically controlling and using the budget, process will turn the advantage back to congress forcing the executive to engage with the legislative branch and get back into the habit of executing the laws enacted by congress. Thank you. Thank you. Professor pearlstein . Your mic thank you. Chairman mcgovern, Ranking Member cole, members of the committee, thank you for your leadership in convening this bipartisan hearing and for the opportunity to take part as you consider ways Congress Might reassert its authority under article 1. Well, my written testimony offers some explanations for and some recommendations for correcting our current skewed balance of powers among the federal branches. In these brief remarks id like to just share several of the broader understandings that inform the testimony i provided. First, while members of this committee well know that the constitutions basic architecture allocates particular limited powers to congress and to the president in article 2 and to the courts in article 3, teaching constitutional law to first year law students has reminded me repeatedly that the lessons of High School Civics dont always stick as well as we might hope they do. Among other things, without fail each semester, at least some students express surprise when i put up on powerpoint slides right next to each other a list of Congress Powers on the one hand and a list of the executive powers as printed in the constitution on the other. That Congress List is so very much longer than the list of powers granted to the executive. This is, of course, true not only in matters of fiscal and economic responsibility but also National Security and foreign affairs. While, for example, the president has the power to negotiate treaties and receive ambassadors and is our Armed Forces Commander in chief, the constitution gives to congress a far lengthier list. Not only to declare war but also to regulate commerce with foreign nations, define and punish offenses against the law of nations, make rules for the government and regulation of the armed forces, appropriate funds to provide for the common defense, defense spending every two years in public the constitution requires and, indeed, if the flamers have left anything out in any of those powers, congress is given the catchall authority to make all laws necessary and proper to carrying out any of those. Popular accounts have lodge described an imperial presidency that regularly deploys military force with no regard for congressional preferences. Executive branch lawyers and others regularly invoke memorable, if not judicially meaningful rhetoric about the president s role in foreign affairs. Even members of congress and the courts talk frequently about the president s unique expertise in this realm and this rhetoric and this popular story matter. So by now, we shouldnt be surprised to find, as one recent poll did, that only a third of American College students can correctly identify congress as the branch of government with the power to declare war. In short, we have some work to do in the first instance to remind others in congress and the American People that the constitution assumed congress would have access to its own expertise and congress, not the executive, would be the primary agent of change in setting u. S. National policy, foreign and domestic. Second, the scope of congressional delegations of authority for the executive is undoubtedly among the reasons why congress feels frustrated in its ability to constrain executive power today. Yet, while some are understandably focused on the role of administrative agencies writ large, among the most significant delegations of power to the executive are found in statutes that give authority to the president , alone. Triggered by factual or policy determinations made solely by the president , himself. These delegations arent to the Administrative State. They are to the president. A few such statutes relate to war powers directly, the 2001 aumf, but the vast majority of statutes of this type address other federal policies from trade sanctions and domestic emergencies to economic regulation and even immigration. These delegations are particularly worrisome, in my view, but theyre also particularly likely or should be particularly likely to generate bipartisan interest in correcting. Particularly worrisome because unlike broad delegations of power to administrative agencies, a president is not bound in exercising these powers by the administrative procedures act. A statute that requires agency decisionmaking to involve input from experts and other members of the public and subjects them to digital review to ensure theyre reasoned and supported by facts. President s may decide to consult their expert advisers. They may decide to follow an internal process. But the apa, itself, doesnt require them to do so. Its for this reason that both parties should be interested in making reforms at this level. Why it may be essential in some circumstances to afford the president flexibility to respond to particular National Emergencies, its difficult to understand why any such response is not informed, not required to be informed, by our nations best possible expertise. Finally, i want to caution against any temptation to see delegation as such or administrative agencies as such as a bad or uniform thing. As recent events make clear, we need an effective cdc. We need an effective nih. We need effective departments of state and defense and others and delegation of powers to these and other agencies are an indispensable pool of good governance, but delegation is not an on off switch. What makes it good or bad, more or less effective, depends in significant part on how well congress chooses from its broad suite of tools to channel and monitor administrative discretion. From providing concrete statutory guidance about what and when congress believes action is needed, to imposing restrictions on the exercise of that action, like requiring the president to consult with congress or with the relevant experts, document findings or imposing automatic termination or sunset restrictions that prevent delegations from lasting inperpetuity with meaningful tailored Reforms Congress can succeed in reclaiming its power and improving the appropriate functioning of government for all americans. Again, im grateful for the committees efforts and the opportunity to share my views. Thank you. Professor p rorks rokash. Dear chairman mcgovern, other members of the committee. Its an honor and pleasure to be here. In my view, the first branch risks becoming the second branch. What was formerly a branch with great powers and great responsibilities has gradually ceded its authority to the executive or sat idly by while the executive ceased the authority. If the previous president or president s have taken some act, those acts form the Building Block of subsequent acts of future president s and its a bipartisan problem. So transgressive acts become the material, if you will, of a new constitutional conception. This happens over and over again, both statutory and constitutional contexts. My colleagues here have mentioned the war powers of the congress being usurped by the president. Thats certainly an instance where the president or president s over time have claimed authority to wage war basically in the constitutional terms, declare war on their own authority and have decided that you have lost that monopoly. I think similarly, president s have acquired various lawmaking authorities from you, sometimes its delegated by you, sometimes its seized from you by the president and these are revolutionary changes in our constitutional structure. The presidency, the executive branch, understands it, too, is a lawmaker in various ways, either through the rules that you authorize them to make but also through various creative forms of interpretation. How did he get here . I think four factors help explain how we got here. President s today conceive themselves as policy reformers. They dont view themselves as principally executive officers and, in fact, when president s talk about their law execution role, people are a bit confused by it. They think the attorney general is the chief Law Enforcement officer. I think by the constitution, the president is. This this mindset makes it more likely makes them more likely to usurp power because they run on a policy platform and feel like they have to implement it. As you are well aware, president s are also party chieftons and expect and receive support for their initiatives from their copartisans almost without regard to whether the initiatives are legal or constitutional, and this, of course, gives them tremendous weight in the public mind and, of course, within the halls of congress. President s have a mighty bureaucracy at their backs. Supplied by you. The lawyers and the executive branch and the white House Counsel and in the office of Legal Counsel and always executive officers are supplied andfactor, i think, is a more general factor and relates to a living constitution. If congress can acquire new authorities by a practice, if the courts can reform our conception of constitutional rights, its Little Wonder that president s believe they, too, can reform the office of the presidency. And i would submit to you that the president s are most able to change our constitution because theyre most able to act with speed and decision and repetitivety tly in a way that creates new facts on the ground. I on unfortunately. So, you are fine, you are fine, you are fine. Whether we are tending to quote abraham lincoln, i think the continued if the water powers and legislative powers in congress can be seized by a president , what cant be seized by our chief executives. You risk becoming a College Debating Society or potted plant in the words of Brandon Sullivan being the lawyer. I have a chapter of a book that ive thats going to come out very soon that i want to share with the members. This is for the chairman himself, but id like to perhaps have you all take a look at it. The last chapter, chapter nine, describes 13 reforms that congress can enact unilat rily with the president s consent or over his veto. I think congress should bulk up its staff. I think its hard to fight a bow memeth,. When youre david, you need staff. It doesnt make sense to me that you are running yourself on the cheap in a fight with an executive behemoth. Maybe i disagree feeds the sense that the president is a lawmaker and i dont think you can do that without that mindset seeping into the executive branch. So, i think you should certainly curve back all the delegations that go to the executive branch and the administrative agencies. Its your job, not theirs, to come up with rules. If you are going to delegate, make those delegations sun set. And if youre going to create rules, make those rules sun set and make them where you reenact them. I think i would try to get members of congress to think more about executive privilege. I think in the modern era its basically a meaning of stymieing your investigations. I dont doubt that president s need confidential conversations. But when we see those conversations spill out daily in the Washington Post or New York Times or books, its odd to think that whatever doesnt make those pages has to be kept from you as you go about investigating the presidency and the executive branch and thinking about whom to impeach. Two other final reforms. I think you can incentivize Bounty Hunter for the law. There are key actions that go back to the first congress. They basically authorize individuals to inform on executive officers who were absconding with federal funds. I think that sort of system could be used to police the power you folks should enjoy and also police the war powers. Thats my last resolution. The war powers resolution should be strengthened. I think the way to strengthen it is to have an automatic cut in appropriations if the president chooses to take us to war and maybe an automatic cut to weapons programs in particular because the military is not going to want to see its budget cut in order to wage war against some nation overseas. I agree with chairman mcgovern, the best time is now. No one knows whos going to be the best president , whos going to control the house and senate. Its in this climate of uncertainty that people can put partisanship aside and act in the best interest of the nation. Thank you so much. Thank you very much. I want to thank you all, distinguished panel, thank you for your excellent testimony. Before i go to my question, i want to acknowledge in the audience former colleague congressman John Hofstetter whos here. Thanks for coming. The constitution puts the power to declare war in the hands of congress and the power to wage war in the hands of the executive. And in some ways this seems pretty simple, particularly when you think about how things were at the founding. Congress controlled the funds. There was no standing army. The president barely had staff and the president had to come to congress for funds to do just about everything. Sure ive oversimplified all of that, but bear with me. As the nation grew things got more complicated. Today we have a large standing army. The president has, lets just say, a lot of staff. Congress still controls the funds, but president s seem more and more willing to move money around to suit them. Starting in the 1950s and coming to a head in the 1970s we saw president s of both parties engage in military actions sometimes without congresses knowledge, let alone consultation or approval. To stop unauthorized wars like vietnam, president s passed the war powers act in the mid1970s. Key to that, congresss reform action was inclusive to legislative veto where congress would be able to stop a president s unauthorized military action. To ensure consultation, notification, and communication with the executive on questions of war and peace. The communication that could be enforced with the legislative veto of a president s action. Then i. N. S. Versus chada rolls around that invalidated legislative vetoes across the board. One of the consequences of the chada decision is we went from needing majority to make war and also peace to needing a majority to make war and a super majority to make peace. So, my first question is this in the wake of the chada decision, is it time to update, reform, merely do housekeeping around the war powers act to ensure the aims of the act, again, consultation, notification, and communication are achieved . I hope this to anybody. Professor pearlstein. Sure. The short answer is yes. I think there in fact there have been a number of efforts. There was a wonderful bipartisan solution several years back. There have been a number of efforts to change the war powers act. I think many of the recommended changes that are out there are very good. I think there are a couple in particular that warrant consideration. One, you mentioned secret wars. And the way the current war powers act is framed, it attaches the notification requirement, the reporting requirement to the trigger that starts the 60day clock after which, right, the president is supposed to seek congressional authorization. You can readily detach that reporting requirement from the notification trigger. I support funding cutoff, automatic funding cutoff mechanisms. The traditional story is with multiple conflicts including venezuela which i testified about last year, before forces used Congress View in a bipartisan way is we dont want to strain the president s authority. And we dont want to interfere or compromise or undermine troops on the ground. Those are the before and after arguments invariably in every use of force which is why a war powers framework guides to funding cutoff mechanism is necessary. I guess ill here mention one other thing which i think is really important, and that is the definition of hostilities. The current war powers act sets up as a trigger the requirement that either the funding must be, in my amended version, the funding would be cut off or the president seeks congressional authorization any time there are hostilities. Over the years, president s have interpreted that word, hostilities more and more narrowly such as even vast uses of force, president s have argued dont count as hostilities triggering the requirements of the act. We need a much more specific definition of what kinds of hostilities were talking about. One thats not specific to domain meaning army, air force, navy, marines, cyber, that encompasses the ways in which the u. S. Government is capable. I agree with much of what professor pearlstein said. I guess i would be wary of trying to amend the act because the act as originally understood did not authorize the president to use force for 60 or 90 days. But in practice the executive branch believes that the act either authorizes the use of force or 60 or 90 days or is written in a way as to assume that the president has Constitutional Authority to use force for 60 or 90 days. If you just tinker with it, the preexisting will go on. I think the fundamental question is do you want to essentially authorize the president to engage in war or use of military force for some small period of time and then have that authority automatically expire, or do you want him to always come to you first . And i think once you decide that, then you can instruct a new war powers framework thats consistent with the constitution and consistent with your desires. I personally wherever possible would like the president to come to us first and get the authorization. I guess if we had former president s here they would say there are National Emergencies, there are things that we have to act immediately and you may be in recess or we cant get you all here. I think thats the thats some of the push back you get. Dr. Spalding. Yeah, i mean, that really goes to the heart of the problem. To put it in very broad terms, the more you want to legislate it, the more problematic it gets and the stronger grounds the president is on to not abide by it. Its no coincidence every president , both parties, has considered the war powers resolution to be unkons substitutional as a restriction. That doesnt mean there isnt a ground to find awe w way for congress to influence that discussion. But it goes to the problem of how do you have a republican form of government in which the legislature is the dominant pow er, especially when it comes to the general operations of government. But youve created an executive who is capable of energy, action, immediate things that hamilton talked in federalist 70. That balance is extremely hard to establish. And the things the more Things Congress does that puts timelines and hampers the executive, theyre naturally going to pull back from nthat. And i think that courts increasingly, in general, will side with the executive because of the sheer necessity of having that ability to occur and keep government safe. Thats one of the reasons why i think this is true in a lot of ways for a lot of the same reasons im inclined to as was generally the case, i think congress is on stronger grounds when its shifting to its primary powers such as the purse as i emphasized in my testimony, as awe way to control that. If you wish to control the president s activities in this expanding notion of what they can do in international affairs, then dont fund them. You have the power not to fund which means if you dont do it, they cant actually do it. It doesnt require a majority to overcome something. You can pull that power back. I think those Powers Congress has are very strong, and you should go to your strength first when you start going out and trying to put timelines on the executive powers. I encourage you to exert that. I think youre just naturally on weaker ground. I think one of the things you have to be careful about is what constitutes an emergency even prior to the era when the war powers act existed. You have two pretty salient examples in june 1950 when north korea invaded south korea. Harry truman took advantage of the fact that the soviet union was temporarily boycotting the un security counsel for its refusal to seek communist china and was not there to veto a resolution to put a Multinational Force in korea. This became the first but certainly not the last unilateral president ial action that committed the United States to a longterm conflict in which over 33,000 americans eventually died. Then the second example occurred in august 1964 in the gulf of tonkin when the Johnson Administration used two episodes the second of which was determined not to have even occurred. But that was long after Congress Without hearings of any kind spirited the resolution to passage. Only two senators voted opposed to that resolution which basically granted the president Unlimited Authority to wage war in much of southeast asia. So, the context matters. And taking the time to determine the voracity of the justification is critically important. Professor pearlstein. If i may, i wanted to just maybe clarify or emphasize a couple of points. First, i quite agree and the framers quite agreed as well, but the president has within his own article two powers, the powers to the convention repel certain attacks, right . So there has never been an argument that the president lacks the power to, for example, defend the United States or americans from attack in immediate circumstance or where that threat is imminent. The good thing that the war powers act does is not or an amended wars powers act could do or a new statute that accomplishes something simil similar is not disable the president from continuing the use of force, right . So, if you had a funding cutoff after 60 days, for example, that automatically takes effect, its not that the United States cant fight the war any longer. Its that it requires congress to vote to fight the war continuously, right . This is a straight up political accountability mechanism that is designed to make the American People and their representatives feel and bear the costs of war. Im happy to doctor. I think despite getting into particulars, i think in the broad sense theres probably great agreement which is that at one extreme the president clearly used to have the ability to respond to immediate threats which could be somewhat broadly defined. But on the other hand, the actual talking the United States into a situation of war in which the whole country is at war with another country or in a broadly determin determined sense of war is. The harder cases are all the things in the middle that i think are somewhat unanswered. I mean, the congress did the convention did specifically use the word declare war which i think they meant the formality of taking us into a situation of warfare. The other thing you should think about is on the notion of if the president has done something there should be automatic cuts. Congress can do that at any moment if they choose to. They dont need a certain amount of time for it to occur automatically. I think congress should make those decisions and push back at any moment they choose to do so. With respect, congress wont. And thats been one of the problems. Thats one of the reasons why i weve i think having this hearing and trying to look at some of these issues are so incredibly important. Im focused on war powers right now and we back in 2001 and 2002, we passed an aumf. I think 70 of the members of congress who voted on that are still here. And yet when republicans were in charge, democrats were in charge, we just we dont have the political will, whatever, to get up and to readjust it or to sunset it or to have these debates. I mean, we should, and theres nothing that prevents us other than sometimes partisanship gets in the way. Sometimes when the president is of our party, we dont want to put that person in a bad light. But the fact of the matter is, you know, i dont think any of us who were here 18, 19 years ago thought that we would still be using that statement aumf to justify the military actions that were taking today. And if you you know, if you think about it, if we dont do anything, 100 years from now you could have a president go back to the 2001, 2002 aumf to justify some action. So, part of the challenge here is that, yeah, we can affirmatively do some stuff, but i think were going to have to we have to put some checks and balances in place that will force us to do some stuff. And people can vote whatever way they want. And im going to yield to mr. Professor prakash in just one second. In my view ive said this because ive been very, very frustrated about and my friend mr. Cole and i share this concern over this over these aumfs that were passed a long, long time ago is i think we do such a disservice to the men and women who are, you know, in harms way that we dont even discuss these things. Our mission in afghanistan, for example, has changed so many times, you know . And then the way its been kind of interpreted is that were using it to justify a number of military operations around the world. And its just it just doesnt seem right. So, im just and i think a lot of times we dont want to take on some of these things because theyre con ttroversial. When you cast a vote on war, it is it is a tough, tough vote. Its probably the toughest vote anybody takes. And weve had, you know, members who have voted for some conflicts that were popular at the time that then became unpopular and they have to deal with the political repercussions. And im sure the reverse is true. But thats our job, and i i think sometimes were guilty of moral coward es when we dont take on some of these things. I think what were trying to figure out is are there ways no matter whos in charge, no matter who the president is, that when were dealing with some of these issues where clearly our authority is being usurped, you know, that if we dont have the moral courage to insist that theres some sort of procedure or process in place that forces us to deal with it ill just yield to professor prakash and then go to mr. Cole. I completely agree with you. Political scientists described a rally around a fact once a war has begun and the war is very popular. It will be hard for congress at that point to pass a statute that cuts off funding over the president s expected veto. Library books come with a date you have to return. If you dont have it, youll just keep it for months or years because you might get around to reading it. I think professor spalding and i have a difference of opinion on the scope of the war power. The power to declare war is to pow tore go to war to use military force. And in the 18th century, most were declared from the cannons. They werent started with a piece of paper. This was given to congress so congress would decide to wage war full stop. No president thought they could use force against a foreign nation. All the uses of force in the early years were authorized by congress in the washington administration, in the adams administration, et cetera. I think the administration has a rope and suspenders idea. You can decide to wage war, how to wage it, and whether to cut off funds. But relying on the last thing as the only means of defense is a mistake. The Emergency Point, if you gave the president Emergency Point to use military force until ten days after Congress Next met, that would be sufficient with him or her to deal with the emergency and you would decide whether to continue. I dont think theres anything wrong with that. I appreciate that. I just you know, in the situation were in right now is that if congress were to vote to cut off funds for a war that a particular president , you know, didnt want to admit was failing or was wrong, we would need a supermajority because we would have to override his or her veto. And so it might make sense or at least worth considering that you put in a provision after a period of time if congress didnt vote you would automatically cut off the funds or Something Like that. Im just you know, i think ive learned i mean i studied history in college. And you read the books on the war in vietnam, for example, and one of the frustrating things is you read now after all these years all these the accounts of how president s knew that it wasnt working but the issue of credibility and saving face took precedence over, you know, making a sound rational decision as to whether we should continue it. And again, i think thats why we need to figure out are there processes or procedures we could put in place that serve as better checks and balances. I thank you. I yield to my friend, mr. Cole. Just on that, quickly to make a point, its awfully hard to cut off funding when theres American Forces in the field. Let me just tell you. I dont care which side of the debate that youre on. Its just extremely difficult. And i think about the vietnam era. You have to remember most American Forces really werent in the field by the time that decision was made. They were out of vietnam. They had Training Missions and mostly were fighting an argue war in the country. So, really the executive branch had extracted most of the american Ground Troops so it became easier. Thats not to take anything away from that. I think they fought hard to win a war, but its hard. I want to thank all four of you. I did diligently read my homework assignment this weekend and i thought there were a lot of excellent suggestions in there, things we can really pick up and do legislatively. Your suggestion about bulking up staff is certainly one of them or having a legal arm thats commensurate with the Legal Resources that we ourselves have placed and i would nominate mr. Rapskin head that up for us at the executive branch. But that makes a lot of sense, putting time limits on powers so within the next week the congress has to move. Those things make sense to me. Those are things when we get done with hearings maybe we can sit down and work together. Im going to pull your attention to two larger trends and get your comments on because when i see behavior change inpseudside political institution. It usually tells how the actors perceive themselves and what theyre doing is going on. I think about my own congressional district. I live in a district that devoted for Dwight Eisenhower twice, that voted for Richard Nixon in 1960, 1968, and 1962 by evergreater margins that voted for Ronald Reagan overwhelmingly twice and voted for george h. W. Bush twice. And all that time, there was a Democratic Congressman. Theyre two different figures. And only one time did their party achieve their objective. I look at it now. I will promise you this, if i didnt vote the way my constituents vote president ially, i would not be there the next time. And in the upcoming election as the guy who used to run politics and this has changed dramatically in my life in political life which began in the late 70s to now. About 95 of the people that voted for donald trump are going to vote republican for congress and about 95 of the people that voted against the republican nominee is probably going to vote democrat. So, this polarization inside the population really affects what happens inside the institution. And to think that politicians will ignore that for the sake of defending institutional prerogatives i think is to be naive. They didnt have to do that in the past. Literally the congressman and sometimes it was more importantly locally than the president of the United States. We dont live in a culture where that exists any longer. My last election or in 2016, i happened to mention a friend of mine that donald trump got 66 of the vote in my district. I got 70. He goes i guess that means youre independent. I said no, if we get in a fight ill keep my 4 and hell keep his 66. So, thats kind of the way it works. I see my democratic colleagues in much the same position in their respective districts. So, im just curious how you think these Larger Forces because theyre not easily correctable by tweaking institutional changes as important and useful as the things i think you suggested would be how did those things get loose to how we would have them. We live effectively politically. We live in a Constitutional Republic full of checks and balances. We operate in a parliamentary system politically where there is a prime minister. We call him the president. And where it is very difficult for anybody in that prime ministers party to consistently vote against him. It has to be a really dramatic moment. And its a highrisk moment politically for any time you do it on a major issue. Not very often you consistently well, forget consistently. If its a big issue, you can do a lot of independents. But its very difficult. One, how do we get there . Two, how do we get out of there . Ill start since youre diligently putting your notes down, ill start with you. Just make sure your mic is on. Well, i think one of the things thats happened in the last 15 or so years is a lot of americans just have lost faith in the electoral process in general. You add the cumulative effect of gerrymandering on behalf of both parties, the shelby decision, citizens united, two elections in the last 20 years where the winner of the popular vote didnt prevail in the Electoral College. And the impact of that is a lot of americans have checked out has lost their faith in this body in looking after their interests. What was it . 41 of eligible voters in the last president ial election didnt vote at all. And i think that what you guys could do, perhaps, is change the tone. You know, a lot of people feel that its just white hot meeting white hot at all times. And the face of that, its exhausting and it really makes people lose faith that the institutions we have can work. Dr. Spalding. I guess the one thing i would put out here is i think there are large numbers of people in both parties, but especially in the movement that elected the current. And this is no comment on him or what hes up to who are increasingly of opinion that its not clear who now makes the laws anymore. When you have a situation where agencies, departments, unknown people somewhere down in the bowels somewhere are writing what are for all intents and purposes laws. Often times that then gets enfored and adjudicated within the same body. And i think that pushes a lot of people to wonder whats really going on here. So, theres a lot of frustration about that. I want to agree very much with that. And its actually and one of you mentioned discussion about the rains act. This idea of forcing congress at some level in some way to either legitimize or knockout rules and regulations i think is a really good idea. We need to put our fingerprints on the murder weapon, so to speak, in one way or another, and go from there. But, you know, a lot of times and our leader dos this and i dont say this critically. Its one of their jobs. Youll see leaders protect members from tough votes because they dont want to risk their majorities. Ive seen it on both sides where they might not want to vote on war powers because i dont want to put my people out there and risk not just then but also the majority itself. So, thats again, building institutionally things where youre forced to do exactly what you suggest. And, you know, i have a lot of colleagues on both sides that like to rail against Administrative State. They certainly wouldnt want to have to vote on all those rules and regulations because they are high risk votes you respect a rural district, just try voting for waters of the u. S. And explain that to any farmer in your district. Youre going to be in big trouble. Just to finish my point, there will be people like or dislike the policies. Thats not my point at all. The claim of the american constitution is consent which means responsibility. And its not clear whos responsible anymore. And i asserted a Republican Congress to check a democratic president and now vice versa. There has to be accountability. Im not against all delegation. Some delegation is necessary to be given this scope of government. My guess is im hope to being persuaded about this question about how to deal with authorization of use of force. Thats a problem, sunsetting. I think its important to kind of take a step back and recognize the reality for what it is. A lot of what goes on for government in this country is not its not clear whos responsible for it. And that is giving the executive a lot of running room that in my opinion they ought not to have, can be misused, and they can take a lot of credit for things they had nothing to do with. A lot of times you dont have a lot to do with that either because a lot of the big laws that Congress Passes says you shall do this, you shall do that. But the details are left to other people to do. And the executive then can step in through their political powers and appointees and direct that in a way. Laws are meant to be general laws. This is your problem. Laws have to be general laws. But the actual administering of government requires more and more and more detail. Thats where the executive has an advantage because if your reaction is we need to get more e d detailed in our law making, you have to think youre granting more power to the executive because theyre the ones thats going to administer and execute those things. So, i think stepping back and looking at it in those broad terms are important. And i would say that the changes over time, agree or disagree with what the policies or objectives were, just the changes over the course of the 20th century in terms of how we govern, regulations and laws and all of that has changed the extent of how our system works. And thats the situation in which we are now operating. Like the spoipolicies or not. And you as an institution are trying to get back in control of your authority which is law making. Youve got a lot of the, kind of basic hard work of legislating in committees, whatnot. Thats why although its not the exclusive answer i think getting control of the budget is really important because historically controlling the budget i mean, president s would sit in fear when congress decided to get control of an agency and get rid of somebody. Your budget power has strong pow tore get control of this whole thing. I would tell you before we move on, actually have control in discretionary budget. Were in debate right now over coronavirus. If you look at the trump budget, youve seen cuts for nih, cdc, whatever. You look at the budget that republican Congress Passed and Democratic Congress now passed, cdc funding in five years is up 24 , nih funding is up 39 , strategic stock pile is up almost, again, 34 , 35 . Infectious disease, Rapid Response fund, have put now more money in there. So, actually the budget, it works. The problem tends to be medicare, medicaid, Social Security, the entitlements. We control that budget. Look at any president s budget, president obama, president trump, anybody else. Look whats there at the end and see if they look remotely alike. They really dont. Appropriators really are ill say this as one pretty much give and take kind of politicians that find the middle of become experts in areas where they really i think of our friends, chairman upton when he was chairman and who was his counterpart on enc . Think of 21st century cures. Great bipartisan overwhelming vote that probably had more to do with medical innovation and streamlining than research and anything else. That kind of stuff we do. I dont disagree with that. My only point is if you dont like something the administration is doing in term of executing one of your policies, one of the best things you can say is congress sal no money shall be spent to do this. Couldnt agree more. Dr. Pearlstein. Thank you. Backing up for a second about the causes of intense polarization including my testimony and theres been wonderful Political Science done to document exactly the sense you were describing about the polarization of your district and others across the country. That is real, and its causes are, i think many. Most of which are beyond my pay grade in the sense that im a constitutional law professor. But i do want to flag a couple because they are potentially, at least within congresss ability to engage or change. I think one that may not fall into this category is the extent to which the existing primary system favors nonmoderate members of both parties, right . So, the most motivated voters come out for primaries, and that tends to favor less moderate candidates. And thats a significant problem. For this, you need an election law scholar and election law hearing. But thats something i think we cant underestimate. Equally money and politic Social Security a growing problem. Its been a problem for a while. But the ability of outside groups of both sides to spend effectively unlimited amounts of money has also tended to increase polarization, right . It favors the extremes. Thats where often the money comes from and thats a problem as well. Social media requires some attention that has been not just because of outside interference but internally becomes a sort of source of growing polarization. It makes it easier. And thats something that requires, i think, congressional attention ultimately as well. And then finally and this gets back to more in my neck of the woods the response in the executive branch to the reforms of the 1970s which we talked about some, the war powers act, the National Emergencies act, there were a suite of legislative efforts to, in response to perceived excesses of the decades before, constrain executive power. The response within the executive branch and in particular among executive branch Legal Counsel has been to very effectively over decades explain, develop interpretations of both the constitutions and those pieces of legislation, that effectively make them toothless constraints. Now, its not the only reason theyre toothless ofless tooth full constraints, but the office within the branch, some of my best friends are veterans of the office of Legal Counsel, but theyre executive minded lawyers and good lawyers. And congress has no mechanism for favor competition in every other way, no mechanism for competing regularly with respect to voicing the constitutional understanding that this is not, in fact, the power of the executive. Were not acquiescing to this assertion of authority. Olc might say it. That doesnt make it the law. I thought that was a great point that a number of you made. Represent coaative cole, im a doctor but my parents will be happy that i became one today. I just promoted. I too feel not situated to answer your question because its not really a legal question. Its a culture question. I think the fact theres a hearing and people on the committee are generally interested in working together and not trying to score points against one or some other president i think is a good thing. I think when members of Congress Model good behavior, people are perhaps likely to take lessons. I think if senator mccain talking to some group where he was running for president and someone said something about senator obama and he chastised or kind of corrected her or him. I think thats good behavior. So, i think tone and, you know is important for you folks to maintain. I think this would be bad for some of you, but i think the gerrymanders problem is something you can fix. You have the authority to regulate federal elections. You can set districts for the states, and you can set them randomly. What happens now is you know that state legislatures sort of cram a bunch of republicans or democrats in a particular district. And that tends to make the representatives from those districts more either right or left. Not to contest, but as a guy that used to do this stuff for a living, i will tell you thats a lot less of a factor than most people think. My district hasnt been gerrymandered and its changed dramatically. In my state, every district was drawn by democrats for 100 years. We reached a point under that system where every seat was a republican seat. I used to practice the dark arts, so i understand trying to tilt the table around the edges. But i also know that thats not really whats driven this. I mean, i think those kind of Technical Solutions miss the bigger point. You know, when i first got here all of arkansas except one seat was democratic, three out of house members, both senators right next door to my state, theyre all republicans today and it wouldnt matter how you drew those lines. They are very red. When i first got here, connecticut, three out of the five members from connecticut were republicans in 2000. And theyre all democrats today. And you can draw the line however you want, theyre going to stay democrats. So, theres something much deeper than politicians tilting the table here going on in our country broadly through the political culture. All im suggesting is that that manifests itself inside the institution in terms of the kind of behavior individual members follow or feel the need to follow. And i say that with no judgment on either side. Im just telling you anybody thats up here is pretty politically pragmatic if youre here for any length of time. So, whether youre on the left or right. And they use so, that means theyre usually making pragmatic political decisions at least in terms of their individual interests. And that doesnt mean theyre not capable of rising above that and thinking of the greater good. Ive seen a lot of instances of that on both sides of the aisle since ive been here. I have one other question. If i interrupted you, im sorry. And its the reverse of this problem. And this is, again, just to get your thoughts on it because you study this is almost an inside the institution question. I will tell you, i said for a while that republican leadership. And during that period of time as an elected republican leader, basically not going to any of my committees and im talking to other republicans. And almost every meeting is about how we can beat the other guys, how we can beat them legislatively, and how we can win electorally. Every single decision. It doesnt mean policies doesnt come into it. And i suspect thats true as a matter of fact i know thats true when i talk to my friends. Then as you become a lead erd at the higher levels youre not going to committee motings anymore. I bet you ive talked to more democrats in a day than any member of democratic leadership talked to republicans in a day. I bet my colleagues talk to more republicans by going to their committees, exchanges, interacting, maybe working on legislation. My friend just brought up a marijuana thing that brought my god christian conservatives and liberal california together on both sides. I dont know how he did it, but he did it. It might fix the tone. I think you guys are entirely too mellow. But seriously, the bigger act of bipartisanships that i see tends to be from individual members because theyre building a relationship back. The way we operate leadership around here, they dont do that. Theyre not i guarantee you the leadership of the two parties very seldom if ever sits down short of a National Crisis like tarp or Something Like that and says okay, i wonder this year, we all know our entitlement programs are out of control. Are there two or three things we could do together that we could or anything like that or theyre not having the kind of discussion were having right now that thanks to my friend chairman mcgovern where theyre talking. We know we all agree the institutional powers of congress have weakened. I guarantee you every member in the body would agree with that. You think anybody are talking about how to reassert that . I guarantee you theyre not. Theyre not sitting down reading the papers you were nice enough to prepare for us and saying heres two or three things that are not particularly partisan, that are institutional if were going to talk about bulking up our legal. Thats an institutional argument. If were going to talk about declaring National Emergencies six weeks into the next Congress Unless congress reaffirms. Or if were going to have a congressional sale with the Rule Making Authority that the bureaucrat state is churning out, those discussions simply arent happening at the highest level. I say that both to highlight it to maybe to flag that for your consideration Going Forward because weve got to think of some ways that the great acts of bipartisanship dont just start in a Committee Like fred upton on 21st century cures. I guarantee you my friend rosy and i work well together on funding for nih and cdc. We have a shared consensus about this is a national priority. We dont care what president s say much. Were going to put more money here and we have. Weve done it under republicans and democrats and democratic administrations and republican administrations. Theres places i see this occurring. I see it on the Armed Services committee very rare, very historically Bipartisan Committee. Theyve got their fights but most of the times the bills roll out of there like 622 after theyve gotten everything worked out. So, you know, i dont know how mechaniz mechanized, weve got to get our leaders sitting down thinking about institutional kinds of concerns as well. It cant just be the rules committee that we set up. We have a very good Bipartisan Committee on the modernization of congress. But youve got to get speakers and leaders around the table talking about this stuff and saying well, i guess ill just set this up, you guys think about that. Were going try and play the real game which is getting our side back in power or keeping our side in power and executing the president s agenda to the party in which we belong. Anyway, if you have any thoughts on that, fine. Otherwise, ill just turn it back to my friend the chairman. Ive done a lot of thinking out loud. Your papers are very provocative and helpful in that way. Its unquestionable that the whole culture of washington has changed dramatically in the last 50 years. It used to be common for representatives to live in washington. Not many of them do that anymore. The dictates of having to continually raise money not only for your own campaign but for the party itself create a lot of necessity for travel, for being in the home district. I think of Lyndon Johnson who was very good friends with senator Robert Derkson who would come to the white house all the time and talk about that. I dont imagine those kind of bilateral relationships, bipartisan relationships exist anymore. And i think that has just really undercut the not only the willingness but the opportunities to build the social capital that can lead to the places where compromise can be struck. I think the dramatically changed media landscape has play aed a huge difference as well. It would have been really difficult for a firstterm representative prior to the age of cable news and the internet to just catapult to the National Stage and develop a reputation that is being a rebel to the party leadership. That would have been really difficult in the age of someone like tip oneal. And all of that collectively, i think, is created the opportunity where youre not governing as much as you used to because of the other dictates on your time and the travel. Thats all i agree with that. But i think we should put in the context where were talking about here. I think what youve described is itself a symptom of the general description that weve already kind of laid out which is we think the politics, i dont mean in a partisan shift but nin a grander sense. Particularly which congress was responsible for delegating powers and doing these things you have shifted authority to the executive branch and youve got to think of the political implications of that. You know, the kind of stories of the past. People would come to congress because thats where the power is to get something done or prevent something or get thats not as true anymore. And largely what do they do . They want to go lobby the administration because thats where the real decisions are made which is the political balance of power has shifted. And as a result, i think thats changed how a lot of people think about their own political interests. In the federal paper, madison tells us the key is to make the interest of the man, meaning you folks, connected that with the place. You have an interest in your institution. And thats key to making this work. Your example i think is exactly right which is a lot of the bipartisanship is kind of personal bipartisanship. You know this person. You work out so rarely is there that type of thinking institutionally. Congress very rarely thinks as an institution. It either thinks individually as members, my own reelection or how do i get to be president of the United States because thats where the power is, or increasingly because of that shift of power leadership in both Political Parties thinks more about the more important thing is to have partisan control in order to support the executive in our party because thats where the Real Authority is as opposed to whether youre a republican or democrat, whether its your guy or not, you should have separation there and some pushback because thats the way you defend your institution. And congress doesnt think that way as much anymore because part of it is the political landscape. Intentionally and unintentionally has shifted the focus of politics. A book said congress is the keystone of the washington establishment. It was back in the early 80s. I think thats no longer true anymore. I think the president , by which i say president bureaucratic state is now the keystone of the washingt washington establishment. Thank you very much. Let me just say i agree with everything mr. Cole just said. The thing is though the tone is the tone. Thats very difficult to change given the attitudes in the country and the media and the polarization on a lot of issues. Maybe we need to get a we all need to be in intensive therapy up here to try to work some of our issues out. But short of that, the question is part of what we want to do here is how do we do our job, right, and not avoid doing our job because its politically inconvenient or uncomfortable for us . And are there processes and procedures that need to be put in place. We talked about the war power stuff. We have National Emergencies that were declaurred when jimmy carter was president of the United States that are still place. Doesnt make any sense, right . Maybe going back to what mr. Cole said in the the opening statement, maybe there are some areas where we can were not going to be able to fix everything. But maybe there are areas where we can actually make tweaks and legislative fixes that will actually eliminate some of the stuff we all can look at right now that says this doesnt makes sense. Thank you mr. Chairman. One thing that we can do is use the subcommit had tetees and ru committee to perhaps dig into the weed ace bit more and come up with a handful of solutions. Like mr. Cole, i read a lot of this material and you all have done us proud with your presentations. Regrettably everything around here is topdown. Weve been here an hour and a half and weve heard from the two top members. [ laughter ] and that would be virtually the same thing if you were in committees, you hear them bragging about how he and rosa delauro got along. Well, theres something called a managers amendment at the end of that. And if you were in our back bencher, you have hell to pay to try to get some understanding unsiu inside of that particular sphere. I think what happens here and what has happened and im the longestserving member on this not this committee, but in this committee now, im the longestserving member. Ive been here 27 years. And when i came here, it was a pleasurable place. It is no longer. And i fear that it will never be again. I served on two little excite tees that exist committees that existed then, the post Office Committee and merchant marine committee. Amazingly i got more legislation done in 1993 than i have in 2019 and 20. And that was because of relationships. And yes, they did stay here. But more than stay here, they got to know each other. And what happens today is we dont get to know each other. After i was here maybe six years, you could just point to me somebody on the floor on either side, and i could pretty much tell you where they were from, what their committees were. And thats because we got to know each other. And thats not happening and we are driven largely by our constituents that also calls us to have this immense polarization that is going on in this country. Mr. Spalding, you said something that distressed me, and i promise you im not going to use 30 minutes. But a part of what you suggested in your original commentary was that the courts are not going to solve our problems. While i tend to agree, its distressing. You went further in a second portion to say that the folks generally are going to side with the administration, and that doesnt mean this administration. That means any administration. And ive seen evidence of that, as have you. But i think those article iii judges have a specific role to play. And just not those two little committees that i served, i could write a letter and less than a month i would hear from the bureaucracy. I can get 100 members to write a letter now, and ill be damned if well hear from the bureaucracy, not this administration. Let me criticize everyone before this administration including we spent a lot of time on the war powers act. I criticize barack obama actively about libya and the war powers act. And pushback real quick, and ill stop. All this business about congress doesnt have the time to declare war, how did Franklin Roosevelt get those members to declare war in the Second World War . They didnt have no damn internet. You understand . They didnt have no airplanes that flew fast, but they managed to get back here and to declare war. And thats our responsibility. And i dont care. I dont want to take away the president s powers to go forward and to do whatever he or she feels is necessary to defend the United States of america. I want to collaborate with that president. I want to have a clear understanding about why we are doing what we are doing. Ill leave it at that because there are so many members. And if you all dont mind, ill go offline and write a few questions to you. But remember we would be welladvised, those of us here, not only to hear your words but to remember that although we may be of a particular philosophy, ideology, persuasion, and parties, we are also stewards of this institution. And we owe it to those who come after us to leave it as strong as it can be. So it may best serve the American People. We originally wanted to talk to you about something mr. With all and i have spent a lot of time. One more vignette from my history. I want to very segregated schools. Very. And by that i mean i rode 30 miles each way to go to high school past three white high schools. I got to a high school that did not have a library. Did not teach foreign languages. Did not teach geometry. And somehow or another, the Elementary School i went to was for grades. But you know what . I know who the governor was. I knew who the Congress Person was. I knew who the superintendent of schools were. I absolutely knew who the sheriff was. All things considered, they were doing a better job of teaching civics, even though they did not deliver newspapers to our area of the town. The teachers would somehow or another cut out Old Newspaper articles and bring them in and we would have civics lessons. I maintain that something has gone awry in this country. When it is that one third as you said of high school or College Students, College Students dont understand the dynamics of separation of power. Thank you very much. Doctor michael c. Burgess. Thank you. And thank you to our Witness Panel for being here today. A rare moment i find myself in agreement with mr. Hastings. You ought to try it, it does not hurt. Yet it does. Yet it does. laughs i also agree with mr. Cole. I just disagree that it may be a weapon for self is flicked injury, not an injury on someone else. I have not spent nearly the amount time here in congress that other people have. Just by observation is the article the erosion of article one powers is something that happens gradually. Sometimes we see rather pronounced demonstrations. Chairman mcgovern last night had a discussion, a disagreement about this supplemental bill that will go to the floor under suspension. Yes coronavirus is an emergency. It was declared in january. Enacted a travel ban at the end of january. We spent the entire month of february in one of the committees of jurisdictions i also sit on. We did not really have a single hearing, we added about an hour on a budgetary hearing on the end of february. We are the committee that is supposed to get the data, we are the subject matter experts. We are supposed to interview the people from the administration and come up with the information to help our friends on the appropriations side. Come up with the correct answers and the correct funding for those answers. But realtime, real world, weve given that up. In this crisis. It does happen, its not the first time this happened. I predict its not going to be the last time it will happen. Every time we allow that as the United States house of representatives, we lose something. In the translation. There was a lot of criticism when secretary azar came to our Committee Last week. He was here for a Budget Hearing which im grateful for, we need to speak to our agency heads at about their budget. At the end of it, we had an hour of coronavirus discussion. A lot of criticism for the administrations budget that was produced. Mr. Cole has already referenced. There was some cuts in cdc, cuts in nih. That was the president s budget and it was prepared in december before we knew what was happening in january so you do have to make adjustments as the world changes. It can change quickly as we all know. But we can complain about the president s budget or we dont do a budget. And were not doing a budget this year. I take some exception about what my friend from oklahoma said, its not a budget its in appropriations agreement theyre coming to. A spending agreement. But it is not based upon a budget. I actually believe we should do a budget and budget for emergencies because we always seem to have an emergency every year. But we are not doing a budget. I dont see that we have the band to criticize the administration for getting their budget wrong in december before they knew this crisis was going to happen they propose, we dispose. We are the ones who are supposed to control those budgetary plans and write that budgetary agreement. I realize thats more of a statement then a question. Ill be interested to hear if anyone has any comment on that. Also on the subject of the budget, im sure mr. Would all would do a much better job if hes not already done so. Mr. Cole already alluded to the two thirds of the budget that we no longer control. Again that did not happen over night, it happened bit by bit. I think that needs to be reversed. I agree with mr. Cole they would be probably correct career ending votes for some members. But honestly that is what we are supposed to do. Make those tough votes and be held accountable. If were not representing the folks back home they will get a better idea about who can. But i recognize how hard it would be to reclaim all two thirds of that budget. But i would welcome anyones advice or suggestion to begin to bend that curve back a little bit and bring that power back into the legislative branch where it belongs. All kinds of mandatory spending out there. Yes there are places i think where we should perhaps think about bringing some of those programs back on budget. I realize the reason they went off budget is because no one wants to touch that. Its like a third rail of politics, you touch it and you die. But we need to do it for the sake of the generations who are yet to follow us. Again i realized this has been more of a rant then a question but i will be happy to get your input on those observations. We started this in this time and go that way. Thank you congressman. I too share the concern that two thirds of the budget is on autopilot and never voted upon by congress. That obviously leads to a situation where things are never reconsidered or we looked at because they are seen as sacrosanct. I was not prepared to talk about the budget process or lack thereof for the entitlements. In my recollection, Ronald Reagan got together with democrats in the house and passed the social securities reform act. I think its possible. I was hopeful that president obama, he had a commission and that something would come of that. I think thats what needs to happen in order for people to have cover to do something that would otherwise be super politically in palatable. I think youre right. It would cause a lot of obstacles, people would try to exploit the situation saying you voted to cut this or that. Its sort of a responsible to just spend money without thought for decades upon decades. Thank you. I guess i would like to respond generally to the concerns that i think both you and mr. Cole expressed because i think they are related. How do you carve out in a highly polarized political environment, a space for serious conversations that are politically difficult and in many respects politically impossible in different ways. Congress used to do a better job pet creating bipartisan spaces. You can call these if you were in any other institution, building spaces. Congress did this through for example creating bipartisan commissions. It has done that in the past on immigration and after 9 11 and in many other circumstances. These commissions for some reason have gotten a Bad Reputation is never quite producing the results they want. But they sometimes do produce results and they certainly produce results more often than not having them produce results. Those kinds of commissions, congress having its own agreed upon source. Cbs is a great example. Gao historically has been a great example. As our world becomes technically increasingly complicated and congressionally agency like atia, it does not have to be the office of technologies estimate. It can be a new version of it. But something that enables congress to have at its own bipartisan disposal, its own agreed upon set of facts and understandings about social media might effectively regulated. Why the problem of emerging Infectious Diseases guessworks what we can anticipate for growing Health Care Prices population ages over the years. These are all problems that require not only the ability to meet together or cross bipartisan spaces in times, but also having an agreed upon set of information and we are as a society and a point where even that is becoming difficult. Congress is in a wonderful position to recreate some of those spaces. And while one might be limited to one third of the federal budget that, is an enormous amount of money. Oh tear, when it was zeroed out had an angle budget of 20 30 Million Dollars a year right . So thats a lot of money to me. But i dont think its all that much money to you guys. I talked about some of this in my written testimony. I think those organizations are important and useful not only because they serve and educational and information general generating information but they also make it possible for you to begin to remember or regenerate those muscles of working together institutionally that have atrophied over recently. I agree with the concern youve raised, and i guess i would say its often the case among others who suggested reforms in the past. Were always looking for technical fixes. People will always want to find the silver bullet. I guess the theme here, my theme here is no its actually the hard work of governing that needs to be reestablished. In the fact the two thirds of the spending is automatic there still a third, it really is the principle that matters. You guys for the legislative branch that is irresponsibility my point is to, i dont disagree with congressman hastings point, the courts are there for a purpose, as an institution i am on tristan and seeing you at institutionally as opposed to running to the courts thing i told Republican Congress when they had the majority. You want to be institutionally stronger. The other general point i would make is, i am struck by how important commissions are, but the question is how do you structure it . Successful ones that solve the problems was the black commission. We have to shut down a bunch of stuff and no one wanted to do it because it was my district, so you figure the commissioner would do it and you kind of will do it together. Maybe theres Something Like this here. I am not sure it is a particular piece of legislation that in doing it yes or going into an election and not sure if youre gonna wind that you are in an election cycle. You need to figure out with the pieces are with the trade officer might be with the what the republicans want or an exchange will use this power. There is going to be some sort of balance there. But then you can have it not engaged until you have this but maybe the president after that can do something in the future. Its got to be a bipartisan reform. Its good to start by reestablishing the premise of these things you cant buy it off all in one thing or you will be suicidal in those cases. To do some. Take two thirds of the budget that arent, that are on that are known to. You might keep that going, but at least if you take the act of voting and get into the habit of it and those kind of things i think are actually quite useful. I think that in addition to the tone and the context all of this is happening really matters a lot as well. For millions of people in the United States, the promise of equalization hasnt worked out. If you define American Manufacturing more winnowing out of many communities that had a local employer on which many people depended. That is no longer there. The opioid crisis, and we are watching our country shift dramatically. An aging population, decline of college, ages a portion of our population. There are so many things converging and it just amplifies that sense of helplessness, hoping that you will take those hard decisions, that 70 of the budget that is mandatory spending. As we watch incoming equality to continue to exacerbate. We have a distressingly large number of americans who cannot handle an unexpected 400 dollars expense. So a sense of desperation rises in diseases of despair. I just hope that we can make those hard decisions because the fate of our country is hinging on with 535 people in this body do. I just have one further observation chairman. I am fortunate to serve on the committee of commerce. We over the past five seven years, past several landmark bills, track and trace bills to secure the safety of our pharmaceuticals in this country. Certainly carries into the 24 century, one of those big bills, a years ago we passed something dealing with opiates called the support act. Several years before that we repealed the Sustainable Growth rate formula but the one thing ive learned from passing those large landmark pieces of legislation, is it does and it did not end the signing ceremony. You have to watch it like a hug over at the agency. If you dont even hesitate to call them oversight hearings, we have to implemented according to congressional direction, or has there been some interpretation, and i can sanction numerous examples but i wont. But it is a constant feature of at least our job when we write those authorization bills in the committee, the other committee that i was fortunate unfortunate enough to be on. When we write those legislative, we need to have the courage to follow them through. Well have busy schedules. There is never enough time in the calendar, never in of hearing rooms, but we need to make it a priority and make sure that we do it. Thank you mr. Perlmutter. I think each of you mention ambition, that that would be sort of a limiting factor to the loss of power. The other sort of contrary philosophy out there is the path of least resistance. And those two path of least resistance has been winning. And honestly i want to thank mr. Mcgovern and mr. Cole, because i think today are going to be the last day of the path of least resistance winds automatically. I give a quick story and a lot of people have questions, but it, in my backyard have to backyard. Neighbors won a very conservative family another pretty liberal. A few years ago im cleaning up in the backyard, and a gal, a pretty conservative gal comes up to me and said, i cannot believe obama has 212 emergency actions. I said what . What are you talking about . He has brought forth 212 rules are something, based on emergencies. I said well that cant be true. I stepped back and, he had done a lot of emergency things starting with dhaka and a bunch of other stuff. Well, about three months ago, i am in the backyard in the liberal guy on the other side says that trump, hes doing, everything he does is based on an emergency. There are not that many emergencies. You know that its sort of whats been going on here. We have allowed the power to move to the executive branch, and doctor spalding, i could not agree with you more, the Administrative Branch just keeps growing and hear comments about policy from reformers, i was looking at everybody slogan, make America Great again, obama for change, or whatever it might be. Long ago, it was the buck stops here or, i like ike. But now its about some sort of change in policy and people look at it that way. I think, and mr. Cole kind of let his hair down. Part of the problem here is we have to be intentional in resisting this, lets them lets let them do. It let us forget, given a really broad discretion and let it go lets move on. We have got to be intentional and we have to have some intestinal fortitude. There will be some prices to pay. I guess i would just like to ask the panel, we are dealing with the coronavirus right now. Emergency settings, i think we can all agree it is an emergency setting. How far it has spread and how quickly continues to spread. Obviously we need to address. It so as our appropriators, mr. Coal, mr. Laurel and others are putting this piece of legislation together, how, as historians and constitutional experts, should we limit this . So that we do not again just give away Something Like we give away your marks, the Emergency Powers. How in that context, would you help us as quick as you can, because i want to turn it over to everybody else, kind of limit this legislation weve got before us as a way, as a turning point where, okay we recognize the emergency, but we are not going to just give you the keys to the car for the rest of time. Professor. Congressman thats a very tough question. I dont really know anything about the coronavirus. But from a legal drafting standpoint i guess is what im asking. Let me just throw out some ideas. It is possible that you passed an appropriation, but you dont make it large enough, or you make it small enough that they have to come back in a month and update you with whats going on, and maybe that is how you keep the keys to the kingdom. My sense of appropriation is lump sums and then the author risers are supposed to tell them what to do with. It i dont know if thats happening here on whats going on, but if you have a sense that theyre giving away the keys to the kingdom there is clearly something wrong with the bill that is before you. Like any good lawyer, im really reluctant to comment on legislation. Just from a legal writing standpoint. Let me say three things very broadly, about how congress should think about its role as legislators. With every bill you have three moments of asserting interviews and regulating effectively. One isnt directing executive or whatever it is whoever. Directing specifically what you want to do. You want to say regulate an emergency, fine. What do you mean emergency . Do you mean something, does it happen every day or is it likely to recur repeatedly or do you need something for, example that is timelimited right . A reasonable scientist or officer of the cbc would expect, would not recur or would last for a limited period. So there is a lot to be done with drafting. You can condition funding if condition ex doesnt occur, then these funds are not available. It condition ex occurs and these funds become available. Then you have opportunities where legislating in the first place for imposing monitoring and that can be common testified you shall every 15 days or 30 days or whenever it is report, and that report should be detailed in that report should include the guidance of whichever relevant experts you want to hear from or not for example be certified by doctor so and so whoever else is engaged in that process. You can have requirements of consultation for congress, requirements of consultation, you can build in monitoring in lots of different ways. In the third kind of thing, you should look at every piece of legislation to make sure it has some sort of termination or calendar. Which i dont mean, these funds warren went out on me. But which gives congress, leaves congress holding the key, saying this one is out after, pick a date, right, 90 days, after which time Congress Must reauthorize, so all three of those things are options for which congress can equalize. I want to say one thing to you. I think you are absolutely right. The power of the purse is the ultimate power. This Committee Last year, when we were in shut down, we would meet about every two days, hoping that there would be some compromise that would allow us to open the government again. I mean that is a blunderbuss, bigtime hammer to use and not one that we want to use very often, but to my question. I agree with all the points youve made that were very well said. I will actually make a non budgetary answer partially, which is look, the authority here, is youre going to use your power of the purse, and the president is in a position where he needs you to use the power of the purse. So you have what you call leverage. Congress should declare a National Emergency. Who says only the executive can declare National Emergencies . You might put that in the bill as you guys drafted today. As you object to the executive having that power, wanted to do it and preempt him . Hes drafting this bill today. laughs all of a sudden you have both branches defining what a National Emergency is. Its a must sign piece of legislation because it has budgetary far behind it. Thank you very much. I have nothing to add. All right thank you. Mr. Woodall. Thinking mister chairman. Thank you all for being here. Im trying to think about that pathway back from here. We talk a lot about small ball versus big ball. I think a lot of our challenges is just best habits. Im thinking of the list of things you gave mr. Perimutter for example. I put all sorts of conditions in bills but very rarely do i come back and force those conditions. I will ask article three to enforce those conditions. So there are many things that we can do that will not only accentuate the feckless of congress of today, but further weakness tomorrow. What do you see as the pathway back . Those incremental steps. You mentioned professor, that we should play to our strengths right . There are those things that are not naturally divisive. But we just got into bad habits. Appropriations bill, it used to be unthinkable that you could get to september 30th and not worked on the appropriations bill. Now its probably more unthinkable that you will actually make time to work on the appropriation bill at all. You pass on it on september 30th. That took just two decades to take hold. Help me with those beginning steps back. I know you are not behavioral specialists, your constitutional specialists. But because youve seen the pendulum swing over the decades, help me with that. Congressman i think its a wonderful question. As you said im not a behavior list. I wonder if members of congress are conscious of the time they spend doing various activities and then thinking about how they ought to really allocated in a way that makes it more possible for them to conduct legislative business as opposed to the myriad of other things they do. If you dont do that, you dont have a sense of what you are doing with your day. Speaking for myself. I sometimes get a message on my phone, you are on the phone in extra five hours this week. You played this game for an hour. Those things add up. Maybe thats a small ball reform that would conserve your time to do things that you think are more important like legislation. I served on the Monetization Committee that is looking at some of those items. What we found is the best way to do that is to get folks to focus on things. I just had to come from another hearing to be in this hearing. But guess what . That was the transportation and i dont want to give up the transportation committee, i dont want to give up the budget committee, i dont want to give up the Modernization Committee or the rules committee either. Here we are, my bosses back home encourage me to do more things less well instead of a single thing well but i appreciate the targeting, it is absolutely something that we are trying to sort through. Anyone else have any wisdom on the steps back . Thank you. I think you are right in terms of thinking that through broad stages. Its impossible to identify them in particular ways. But i would say there are at least three phases. Putting it in broad terms. One is the first phase is having the will to do it. Congress speaks as institution through its legislative function. I believe it is the most powerful of the three branches. But it needs to top that way and act that way. In part its establishing the will, my psychological answer. Then i would make a distinction. You play to your strength. The place to start is where you are strong which is why i emphasize the budget power. Then when you reestablish that strength, you want to use that strength to exert yourself in other areas. Its not to say you dont fight those other fights if they come along. As you should. But you should have that in mind which means youre taking the steps to rebuild that strength. There i think you are right. Budgeting is the key power. Ive always wondered why there are a certain number of appropriations committees. Or why you have to do it in a particular order. Right . These are all political questions. The number of committees is based on the number of divisions within the budget which comes up from the president. You could do your bordering appropriations differently. Say the things you want most leverage for later. Think strategically about where your strength is and how to use that as powerfully as you possibly can. I would start there. Then i would let the other things as they come up, fight those things if you need to fight them. Fight if you need over an authorization. Im not opposed to those at all. I think its a long term problem and part of the long Term Solution is rebuilding your strength. I would echo a lot of that thought. A few times this morning about the famous warning in Dwight Eisenhowers farewell address in 1960 about the military industrial complex. That is something that has happened to decrease your power as well. There is a whole lot of special interests that are continually bombarding the government. Maybe considering how some of that might be rained in would be really beneficial here. Others have mentioned increasing your staff. Facing a whole host of actors that are trying to make government work on their behalf. The Administrative State as well. Empowering and growing the Congressional Research service. It used to provide an excellent source of impartial information. Were in an age where we have more information at our disposable as a result of it because its become difficult to discern what is or is not credible. There are some proposals about increasing the size of the house itself. So people can be more responsive to their constituents. That ratio has changed dramatically. Thinking through inefficiencies in government, the search process, the length of time people wake for clearance inefficiencies in procurements that leave government behind private industry and the type of technology it can use. The purchasing process. And then i would repeat the suggestion of an office of Legal Counsel within the legislative branch. We certainly did that with the budget act, we were tired of getting pushed around by omb so he created cbo ended a pretty good job i would say. The American People do not rely on omb for budget information they go to cbo. We achieve the gold we desired. I should add that i agree with the notion that congress should beef up its ability to do things. One of the mistakes of the contract with america. If you ask me what gingrich he would agree with you. He took the first step since he was in favor of cutting government, lets unilaterally cut ourselves and reduce our size. That was a big mistake if you want to be a player in the game. I would agree with the sentiment. That hammered the house more than it hammered the senate because we were driving that train. Whether it was 1994 or 2010 when i was elected, those were our two big article one budgeting years. Particularly house budget cutting years. Let me ask that question directly. Since its not a house panel. We all want to serve our bosses well and serving the constitution trumps every other concern my constituency has. If i was to paraphrase you doctor spalding, i would say that you are telling me that i am betraying rather than serving my constitutional responsibilities. By shrinking article one spending relative to article two spending. Is it that simplistic that you believe our constitutional obligations are being subjugated to our budget concerns . I think your obligations, first of all your first obligation is to the constitution to which you swear allegiance. You are congressman and youre allegiance is to this institution. You have no specific constitutional powers individually, you only have it as a body. You have those obligations to not only exercise but keep an eye on and monitor the powers that you have been given responsibility for. So one of the ten tendencies that has happened over time. Like the policies are not. It is that we have more and more put sort of experts or bureaucrats or administrators whatever the connotation. They are out there. In an odd way, im advocating more politics not less. That is the math is sony and solution. The medicine solution is that the branches need to compete with each other and be Strong Enough to engage each other. The problem is a lot of the expertise that makes the decisions that you ought to be making has been sent elsewhere. Having done that, youve weakened yourself to play in the separation of powers back and forth. That is the mistake. So what is your answer . Sometimes you do have to delegate, these things are complicate and you want people who know. You need to recognize what that means constitutionally, politically, in terms of you carrying out your constitutional duties and responsibilities. I think that over time, it has become a real problem for both Political Parties. Youve also fueled the ability of the executive, who has nominal control over almost all of that, to figure out ways to creatively use all these regulatory authorities. Sometimes poorly written laws, sometimes laws that contradict each other, in ways that allow them to essentially govern. So yes, i think institutionally, congress is not upholding what i think is its primary constitutional obligations. Thank you. We agree on quite a bit and indeed what i was thinking as you are asking your question was about congress disabling its ability to compete effectively among the branches. Right . If the idea is ambition will counteract ambition. Part of the ambition has to come from individual incentives and that is a big problem. We talked about politics and polarization a little bit earlier. But the other part of it is simply resources and capacity. You are now completely beholden to and dependent on your supply chain for information which comes almost entirely from the executive branch. Putting yourselves in a place where you can effectively institutionally compete is essential. One other piece of this i want to point to and that is, as you think about the separation of powers and your ability to compete throughout the branches. There are three branches right . So its not a twoway game, it is a threeway game. One of the large problems that is contributing to the overwhelming effectiveness of the executive in winning this contest so to speak is that both of the other two branches are in one way or another shirking. That sounds like a bad word, i do not necessarily mean it that way. But right now Congress Allocates its power to the executive. The executive acts and the courts say we need to defer to the executive as well because thats the source of expertise or because well the executive knows more about Foreign Policy than we do or because, as a decision in this past week says, im not sure members of congress have standing to sue in court to enforce the powers that they are trying to enforce. Obviously you dont exercise of article three courts stability to exercise independent judicial judgment. But when congress does things like legislate to create a clause of action, a statue that includes the right to sue. This sends to courts a message that says in fact we dont want you to shirk, we want you to be as engaged as we are right . The notion is, by adding powers. Not just saying you take the ball right . You by adding powers you better power branches defined executive. Again some of those things we could do to hold folks accountable that you were mentioning. I think our work here is a little bit like parenting. It is important to set boundaries. But the worst thing is you can do is set boundaries that youre not going to pay attention. Back to when thats what we used we used to do appropriation bills regularly you could get to the end of the appropriations because were reading it live online. We start going through all the reports are gonna be required and are gonna be you know, 7000 patron port on how to solve world peace and it will be do my next thursday. There is no expectation for going to get that done and theyre gonna ignore it and were not going to enforce it. Thinking about that, given take, maybe its hard for us to reclaim some of that power, which should be easier for us to stop giving away any more poor power. Tell me about the interplay between your encouragement to hold folks accountable, versus the system we fall into war folks dont want to embarrass their president , and in fact my bosses back home dont want me to embarrass their president , depending on where those political winds are blowing. Sure. So, a lot of Different Things to say there, let me maybe highlight one. Or to. On the question is what do you do when the executive doesnt do what youve told executive to do, whether its filing a report, the statement of legal theories has changed under the other eight cents for the use of severe survey that was just past was due over the weekend or at latest i suppose monday. It has not been received. So that is a big report. We have not seen it, unless something has happened while we have been sitting here. There are a couple of ways to deal with situations like that one is you create incentives and the individuals whose serve in the executive branch. Now the extremely of doing that its by imposing particular kinds of liability, the congress has done that before with its assertions, anti deficiency act trying to make sure that individuals within the executive branch has personal professional incentives to do what congress has said the law is and not to follow executive fifth they said otherwise in order to follow congress is priorities and not someone else is. I dont think you have to necessarily start with the Nuclear Option, that is necessarily start with individual liability members of the executive branch option. I think there are other steps you take short of death. Including using the budgetary power which i entirely support. The funding stops if this is not forthcoming. Congress has to exercise some judgment which are the reports that are really important. Which are the reports that are not important. Even within the executive, there are so many hours in a day, but there, are as with these other kinds of ways of drafting legislation, a menu of options, and rather than thinking about enforcement as and on off switch, think about it is a continuum. Heavy guns of enforcement our individual liabilities or fines for example and for example if this doesnt happen. Less than that are simply right to sue. Less than that its Something Like a funding cut off or a warning. Less than that is sort of the basic oversight functions. When this report is due this official is required to come testify so the official is who is responsible for the report of whoever it is has to show up and personally take responsibility to congress if the report is not brought with him on the day of the testimony. So there is a menu of options and congress has all of those powers it depends in Emergency Powers and emergency situations you want to design that menu somewhat differently, but all of those tools are available. I think also they should be used more liberally. One thing i would add to that is, one of the dilemmas in both that both party faces which allude to the end. How do you carry out your responsibility when the person in the executive offices in the same party and you do not want to embarrass them in your constituents dont want either. That is the problem. Part of that answer is, i dont mean this in a downplaying sense but in a powerful sense a rhetorical answer. What i said earlier about establishing the will to act as an institution and you responsibilities, congressmans need to talk top that we. More yes im sorry mister president , its not that im against you i like what youre doing, but it is my obligation to make sure this is done correctly and through a particular process. I think that where congress is timid when it comes to those things because weve got to a point where everyone assumes that as soon as you draw a line, it means the Nuclear Option or its a red line. From a constitutional point we want to push more and more back into the legislators precisely because the legislature is a place where you can have deliberation and consensus and accommodation. The problem, im not opposed to going to ports but i dont like the courts and political questions because they are binary. The reason its the problem with the executive oftentimes its because its a unitary decision. Congress is the body, the branch in which you have to figure out how to come to some sort of accommodation on those things. But you need to explain that to the other branches in a way that defends this despite your partisan affiliations with or without the executive. Not every challenge of the president is partisan. They shouldnt be at a certain level. There are certain things, im not even gonna say it, but their institutional challenges. You should be at the point where you could do that with beaded republican or democrat, the control of congress being the other way around. Today, everything, everything you do, every motion, every little gesture is seen as partisan terms. Part of that i think is also learning how to better explain and argue those things in Public Public terms through legislation but in terms of value. I think the way i would try to explain it to a constituent is its not about its president. What we are doing its constraining the presidency at large and it implies the president or president sanders or president werner whoever would come down the line. I think putting it that way makes it clear to people that since they dont have a monopoly on the presidency, they can see the wisdom of the institutional constraint without regarding who was president. I can even tell the president its not about here. Maybe this takes effect next year and so, or whatever three or four years from now. It is not as good as it is taking effect now but it certainly, some people dont know who will be the next president or the president after that. I think its easy to say its not about any particular person. Correct me if im wrong, but i believe if congress for votes a pay raise, it does not take place until after the next election. Some some that ought to be your model to make it clear as a occupant of the white house. The point of what were talking about, that is exactly what the 27th amendment says, and yet in the middle of every congressional session, we go to the law and we change the law and provides for that across the board that, the cost of living increase for federal employees and say this shall not apply at congress, there is a constitutional amendment that says you cannot change the pay in the middle of the term but yet we do it every single term. Strangely there is no legislation litigating that to get that fixed. Two quick questions mister chairman for your indulgence. Sunset language doesnt exist very often when things do sunset oftentimes well go back and reauthorize from an institutional perspective, creating more sunsets language strengthens us as article one or because our our habit of ignoring unauthorized programs and their expiration continues to weaken us as article one, its that obvious to . I think you hit on a possible dilemma. On one hand were talking about well actually like. Sunsets you authorized a certain period of time, theres going to be an authorization for military acts. Having that sunset or defining it is a great idea. But like you said, this is an exercise in parenting. You have to enforce your son sex. There are plenty of programs of long sunset but you still appropriate money for but there are contradictions out there. Whatever you choose to do i think one of the things that will play your strength is being consistent. So, with respect to sunsets, i think they are essential for use of force measures in particular, and emergency authorities in particular. Because way the legislation the way the legislations and authorities are currently designed it requires a simple majority of congress thats flip the switch on to war or emergency authorities but requires a supermajority of congress to turn it off. That is because of china and you cannot have a current resolution we touched on this a little bit earlier that was my testimony. So theyre a sunset is i think indispensable. Beyond that and beyond that context, i think the way to think about sunsets is not necessarily is it an increase or decrease of power but about what kind of incentives it gives you to vote or not. Sunsets are what i would call a democracy forcing device. They do not empower or disempowered, they just make you vote again if you want to take action. If it is something that you think its essential for there to be repeated democratic consultation on, sunset is a good thing because it will make you vote. If its the kind of issue that you think i dont want to vote on this ever again, then you want to be maybe more cautious about sunsets because you will come to the requirement of voting, and if your members are incapable of acting for political reasons or whatever else, and it is something that is important, late funding or whatever else, then you want to be more cautious. Let me ask, when the golden age of article one empowerment was, you dont have time today to tell me everything that we need to do to get right, but i can go read the history books and see what folks were doing. One of my favorite quotas that jefferson letter to wreckage in 1797 and he says, you and i have seen warm debates and high political passions gentlemen of different politics who speak to each other, it is not so now. Men who have been intimate all their lives, cross the street to avoid meeting and turn their heads the other way lest they should be obliged to touch their hat. This was ten years in and we and presumptively laughs , those political passions in the senate lead over into article one, exercising oversight of article two. If we had already come unglued ten years in, are you going to point metoo and that exact air, we have more details i think in the few years of the florida ministration than in any other president ial administration, as america was reacting to its executive power and high majority in the legislature. Where is the its so easy to say todays bat. I want to know when it was good, and that will help me to plot a course. Congressman it was never good. There was never intended to be a golden age. The whole point of the constitution, the beauty of the constitution, through seeing the convention the federalist papers, is a recognition that the nature of man is full of political passions and interests, and a lot of good too. The governments job is not to figure out a lot of that out but create a structure by which we can exercise the powers that need to be exercised. Built to have an exact we need to have an executive that we need for crises, necessities. Introduce the court system. They were never naive to think that somehow this was a perfect and that the actions would be. Perfect with a recognized which is what i think our obligation to the constitution is that all the actors in the government are going to have some political instincts. Its human nature. So instead of forgetting not and ignoring that which is one of the reasons why im more nervous about political power being exercised by people not clearly under the legislative or the executive power. They are political to. They are not naive to get rid of that. So instead lets give them a political understanding and then in their institutions instead of institutions against each other partisan checks and balances that would give wise to hire obligation to uphold the constitutional system. The break in my opinion incurs once that system starts getting knocked around with over the course of time. I have identified it with the shifts toward the different way of thinking and introducing arguments about boarded ministration, which breeds executive branch, once you centralize in the seventies against like it or not, that creates the sheer amount of activity that i think makes it virtually impossible for congress to exercise extreme legislative powers. Theyve gone to the midst methods of least resistance and now they can exercise more power because if you guys have not as much ambition i can tell you executives tend to have more and more ambition and thats a problem i suppose. Its its been better though. Im afraid i would agree with that. Lets not forget that it was in this very building where president brooks but that hasnt happened in a number of years. We are on the mend laughs . They did banned weapons shortly in the building thereafter so, but no i mean in terms of discourse i dont know if weve ever had any sort of honeymoon period. It certainly was very vicious in the seventies and nineties as you mentioned. I think in the mid 1970s you had some period where congress was actively trying to actively reassert its power through things like the creation of the federal lecturing freedom of information act 1978 was really the last major reform of the civil service. Creation of the Inspector General office, and that is within a lot of us in this rooms lifetime. Seems like its far away, but really it isnt. I guess theres two dimensions. One is partisanship and what is congressional power. I think theyre in ageist, of Course Congress had more power than they do know even if it was more partisan. I think if you cant have both, at least have the power. I think its a mistake to say that congress has always been a relevant or just a tag along for the executives, thats just not true. There were very powerful Committee Chairs and speakers that basically decided federal policy in any number of ways, so i think that was true for most of our nations history in fact. The golden age empower was centered in this building for centuries. That being the case pointing to the mid seventies as a resurgent in that congressional power. Wind is the failure . Are you coming to the carter years cars that will hurt me as a georgian if thats were to blame. If we can point to the seventies as a resurgence, and it used to be strong, when is the weakness begin in your view . I think it is gradual, i dont think it is anyone decision. I think if you keep on delegating authorities as an executive you will naturally feel like it is the one whos task worth making the laws. When you pass particular restrictions youll even when you pass specific laws that defines discretion where none was meant to be conveyed. I would not blame any particular president. I think theyre all doing this and they have incentive to do it. I do not think theyre evil. I think they are running out of platform and they want implemented and we can disagree with the platform or not, but i think they are just responding i just dont think its any one person i think its a mistake to personalize this and say this president was the cause of all our problems. I guess pivoting off of that slightly, the partisanship in the power are really closely related. They are directly tied. What happened in the seventies was a major effort in congress to reassert power, coming off the years of vietnam and so forth. That the seventies is where the partisanship where the polarization line switches, so if you look at the Political Science, they graph the party line votes in congress, what happens is beginning in the seventies the line starts going like this right, the polar right polarization starts going like this in the seventies. Why did that happen . Probably to describe those trends sit since society, but its not the scope and delegations of change in the seventies. We were well into the Administrative State by then. Which changed in the seventies is the partisanship, and the partisanship affects the power because it makes it harder for you to legislate. It makes it harder for you to act. As congress is becoming increasingly divided, it makes it along party lines closely divided, and makes it harder and harder for you to act. It is not possible to divorce the partisanship from the power. Whats possible at best, its for congress to act in ways that try to defuse rather than exacerbate the partisanship. Some of those are outside things and might have to do with Campaign Finance saying or Communications Decency act to sort of start to think more strategically about social media in a way that respects the First Amendment but still tries to minimize the polarizing effect of that. Part of that is as we were talking about earlier, creating spaces within congress. Do we have a lets have a bipartisan lunch and have an outside speaker to give us a little History Lesson or instruction on how facebook works. Take your pick. This second member of congress, ive heard two members of congress in the last six day say, i never see members of the other party. We dont meet for lunch. Ive got to be back in my district raising money. Ive got to be a Committee Meetings or wherever else. That is an extraordinary statement of affairs as a workspace for you. It seems to me like that is a modest initial step that might begin to help congress, at least not exacerbate the partisanship. I would like to accept the invitation to take back the power. laughs i will trust you with that to take that power. Back i appreciate that. Its interesting that the partisanship came in the seventies. I agree with the point about how there was a golden age. There was a point in which congress is power were stronger relative to where they are today absolutely. There is an intellectual shift that begins in the early 20th century and there is a new theory of governing about administration. There are things that occur along the way. But the fact that a big shift occurs in the sixties and especially in the seventies i think is significant. It is not merely a random rise in the partisanship. For the first time, you know have in place, a fuller Administrative State, and the fruit for the first time, in the nixon administration, there is a sense that that should be fought over between the executive branch and the legislative branch. And so it from the seventies forward you now have a situation where the administrate state largely in place largely centralized in washington, and lo and behold the partisanship, its actually when you have an executive trying to exert their control over it. The other party in congress not liking, that trying to fight back, youve got partisanship. In certain instances that is what is happening today. We fought a similar battle in the eighties. There are these back and forth, underscore the point that a lot of Politics Today actually turns on by virtue of how its been created. We have created the situation where it is in the interest of the executive to fight over the control of the thing you guys have created. You guys need to pull that back. In some way to get that institutional violence and check. It has been partisan iced and to some extent and that is unfortunate, but it is a serious battle with serious constitutional implications. It is not mere partisanship, it is a serious constitutional argument going on as to where do these aspects of the modern state will lie. Who has the Proper Authority where that who gets to exercise that authority consistent with Constitutional Government. Mister chairman thank you and i want to thank mr. Cohen as well for your vision and bringing us together in this hearing and it didnt eat refreshing an exciting for us not to be here in the usual partisan camps not for 13 zero on the side of the Constitutional Order and congress and the people that we represent. When i read through everybodys testimony, i find that theres at least one overarching value in principle that has been vindicated by the presentations today. I think about it sometimes whenever the president , any president violates constitutional boundaries or rights and member of congress will get up and say, mister president , please stop treating us like this we are a coequal branch of government beseeching the president to be good to us. What i take from everything you are saying is that we are not a coequal branch of government. First of all coal equal is not even a word. That is like extremely unique or not an equal branch of government where the Peoples Branch of government we are the representative we are the lawmaking ranch of government under Constitutional Republican frame work the preamble of the constitution is that when actionpacked sentence that gives us all of the purposes of government wean the people established justice and tranquility in the general welfare and preserve to ourselves in our posterity the blessings of liberty do hereby ordain and establish the constitution of the United States. In the very next sentence is article one stating that a legislative power is vested in the congress of the United States in the senate and the house, meaning that the sovereign power of the people to create the constitution, to launch the nation, to design the government goes immediately to congress, then you get 37 or 38 paragraph spelling out all the powers of congress that youve discussed. The power to regulate commerce, internationally and domestically. The power to declare war, to set up a post office, to exercise exclusive legislation over this the seat of government, the power over piracy and on and. On article one section a clause 18, and all other powers necessary and proper to the execution of the foregoing powers and then after all of that, you get to article two, which proposes the executive power and the president. And they are just four short sections in the force section is all about impeachment. And how you can impeach a president for committing treason, bribery or other crimes and misdemeanors. Then the rest of it is essentially saying that the president is the commander in chief of the army and the navy. And the state militias cold up in times of actual insurrection and conflict. And what is the president s core job to take here now that the laws are faithfully executed. To implement and execute the laws that have been adopted by the peoples representatives. So i want to thank you for restoring that essential constitutional vision, which has been so lost over the decades, whether you trace it to the rise of an Administrative State as professor spalding does and i definitely want to ask him about that, or i think in other rival and perhaps, to my mind a more compelling proposition, which is the rise of a National Security state in the wake of world war ii and the development of a massive military apparatus underneath president ial power and control. But i wanted to say a word about something that mr. Cole said i think that he is right and i think he was picking up on one of doctor spaldings points about madison federalist ten about how the design of competing and counter acting ambitions requires those of us who aspire and obtain a Public Office to identify our own political ambitions with those of our institutions and to fight for our institutions in an institutional interest and principal that emerge, and when that happens that really is kind of a beautiful thing, to behold,. I remember when i was reading rubber cameras book about Lyndon Johnson, of course it was a famously great in effect and effectives majority leader, but when he got elected Vice President he had the idea that he would not only be Vice President but with stay on as Senate Majority leader because he said hey, im the president of the senate under the constitution and i should just stay ahead of the democratic car caucus. He expected the senators who usually yielded to his will, which was go along with that, but when he went into the room to announce that this was his intention, there was an absolute insurrection because all of the Democratic Senators said, you now belong to the other branch of government and we have to stand up for the legislative branch and for the senate. That is who we identify with. I think more recently we have seen it a couple of times. We saw by port bipartisan majorities in both the house and the senate stand up during the Obama Administration for the legislation that would make saudi arabia liable for lawsuits by our constituents relating to 9 11. Over the president s view that and we were not distracted by the partisanship for the matter. Just like more recently under the leadership of our chair and Ranking Member, i think we have also stood up for the war powers of congress with respect to iran. We also did it with respect to yemen. And so there are times when we exercise that political, institutional muscle memory, and we are willing to stand up for the powers that have been to us by the founders of the constitution. I want to ask a couple of questions, and one is about the quartz. Is there anybody here. This could even be yes or no. Does anyone thinks the courts can save us here . Or has any interest and saving us here . I see a Supreme Court that has been increasingly filled with people who have made their careers as executive branch lawyers, advancing a strong executive view of the constitution, and that view has come to sway a lot of the Supreme Court decisions. And there are not seeing that the Supreme Court has been in any mood to rein in executive power, so i just want to know is there anybody out there thinks the courts can save us . You can answer with your silence or professor prakash. I dont think the courts can be counted upon to save you or put in other ways do the work that you should be doing for yourselves. I think the only justice whos had any legislative branch experience breyer he worked for senator kennedy for a while i dont know how long. I think you are right that have senators paid attention to this, we could have more justices who actually serving legislatures or served in congress which was not uncommon in the past. I think that is certainly possible, that you can ask president s to think more about appointing members of congress to the courts. Great. My own view is the courts should be more aggressive and checking executive power, but not even Justice Jackson thought the courts could preserve for Congress Power, that congress did not assert for itself. The bottom line is weve got to do it ourselves. We have to exercise the powers of legislative self help in order to defend the proper powers and prerogatives of congress. , so let ceo not doctor spalding i want to come to you. I agreed with almost everything you said but i detected a sneaking attack on the administrate of state, and i certainly heard the same thing from steve bannon when he came into office. His overarching purpose was to deconstruct, i think was the word, the Administrative State. And forgive me, my parochialism here but i represent the eighth district which is near washington d. C. I represent tens of thousands of people. People are slurring today the socalled Administrative State. They work at the department of agriculture, they were get noaa which is in my district. They work at the end i h. Which is to fight and research killer diseases. Center for Disease Control to prevents the disease and bacteria im sorry but i dont think that the 435 of 535 members of congress can do all of that stuff ourselves. I think it is completely within the legislative prerogative to set up these agencies which will be under the executive branch of government to go out and implement the will of the people in a very complicated modern society. That doesnt mean we have to give away our overarching legislative power and legislative supremacy within the system. I am totally with you. If we ride our laws in such a way that there is a very broad and overly vague, or standardless delegation to the executive branch, that should be struck down under the non delegation doctrine. We should make sure that we are delegating laws with specific enough directions that rules can be developed, but as the ministry tough state itself really a problem, and i thought id give you at least a second to Say Something in the maybe i can ask one of your colleagues to answer it. Its the ministry to state the heart of the problem, or is the problem is we do have legislative surrender of powers that properly belong with the representatives of the people . Those two things are not necessarily incompatible. I would agree with that with your last point. But in general i think the Administrative State is a problem, but let me clarify what i mean by that. I know it has become a popular term and politicized in a certain way which i dont particularly agree with. The notions of deep state or whatever these terms. Are in a more straightforward and simple way, im just raising that the general observation that the bides original plans wilson and Teddy Roosevelt people on both Political Party was to figure out how to do more and more things through kind of bureaucratic expertise. Outside of the political control and among other things, congress, that was the intention to a large extent. And here weve gotten to a point where a lot of the things that your constituents normally think of as laws, are being not, are not responsive to consent in a way they assumed for a long time, either through regular congressional elections, or is there somehow consent through the executives . I think that is the level of principle quite problematic. Having said that Congress Actually does a lot of things and regulate a lot of things and it has to buy the necessity of government so im not denying that its an extreme one where the other. I think if were thinking about the discussion here, it is problematic because there is now this huge array of government. Congress is trying to figure out how to, through its lawmaking power and oversight how to keep an eye on it its very complicated its a hard thing to do. And by virtue of that fact, you have a lot of it that now is occurring under the executive who has more and more authority to shape a lot of those decisions through political points in other processes. I think if were thinking about how to revive a robust separation of powers in a way that is ultimately political responsible through consent, which is really objective and well share in common, it is something im comfortable with. Im not saying that we want to go back to hundred years, thats not gonna happen, thats not the objective it would be imprudent to do that. I think that we are beyond the point where Congress Needs to really think hard about how to, when you create something, maintain control of it, it should be responsible it, should be responsible back to you and if there are things going on in the state that you dont like or you want to check, you should be able to have the ability to call those things back and to check them. I think that the less you do that, the more the executive will. Hence, we have the situation which we find ourselves in. Im not saying there are not other factors here as well, but looking at added from my historical point of view, that seems to be a major factor here that tracks very nicely in historically with the lies of the problem were looking at. I just have to excuse myself. I have a bill on the floor, i will turn the gavel to mr. Cole i want to have a break i dont want to have a breakdown on our side. laughs this hearing again, is so we appeal the ruling of the chair. laughs i just have two questions. Professor precaution one of the other teams that have emerged strongly here is that congress has the power to declare war. But he also has a duty to declare war, that is, we cant advocate or surrender that just because its a politically difficult position for us. I wonder if you would just generalize that proposition in terms of all legislative action here. I think so congressman raskin. I think the congregation give you gives you authority and that is true for war powers. I would say its equally true for the other things that are granted a congress, regular legislative powers. You are quite right that you dont have the expertise that agencies have, but i think you can harness their expertise without fully delegating or legislative powers to them as has happened. I think it is sort of interesting an emblematic that the president , i think last year the year before, said that we will dismantle the obamacare. I think that is an incredible statement to make a, but it is actually possible that the statute does give him so much discretion that he can do that. I think that is a consequence of a habit of just saying look, we do the broad outlines and you do the details, but that has consequences for how the executive branch can sees itself. It is virtually impossible for you to change that statute. My final question professor pearl steam, one of the reasons why the executive branch has one person at the top of it and that person can speak for the entire executive branch and communicate the sense of authority and command that you dont get from 535. When i read the founders i think, one of the things they loved about congress was that people would come and they would debate and fight and talk. Yet it is very easy to run against an institution that just talks. Just debating and just deliberating. All of those trends have been pronounced and exacerbated by the rise of modern technology, tv, internet, twitter and so on and so forth. I just wondered if you had reflected on symbolically, and in terms of communication, how to rectify the imbalance between the branches. That is a great and in trusting question george. I dont think have a very good answer. Professor professor cornell wrote decades ago, you can dated back to Teddy Roosevelt so this is a radical change. One of the things that has been most interesting to see and forgive me for mentioning the current presidency for a moment right, this is the first tweeting president. I think thats factually accurate. That of itself, empowers the executive dramatically asked compared to any member of congress or even more. There is, congress has to be enormously cautious when it begins to think about regulating those privately owned named platforms. But those privately own platforms, Twitter Facebook instagram the whole pile of them, exercise an enormously concentrated degree of power that historically, the United States has been uncomfortable in allowing to be held by any one body. We separated powers in the federal government, we separated the powers between federal government and states we have Anti Trust Laws that prevent the accumulation of powers and private industries. We are at a moment were parted because we dont understand the industry very well. It is effectively further changing the balance of power, even among the branches of government. It is something that congress has a duty to at least begin to get a grip on, or understand. Then to think creatively with members of private industry and academia and so forth, how we might begin to more effectively incorporate those kinds of institutions into our political life. I think weve had a real evolution of how president s communicate and public. Wind could make the case that twitter is the new fire site shaft of 2020. Some of the things i think congress could do professor pearl steam mentioned, Anti Trust Laws is a case to be made that some of these companies now wield a tremendous amount of power. I think there are six Major Companies that control most of the newspapers in the United States now. Possibly consideration of the reinstitution of the fairness doctrine im gonna write this picture bit. I also think there is some things we can do to empower the people in the National Archives system who are working for records retention and openness. Both during the staff of the people who implement the freedom of information act, both the national and archives and particular has really had its budget guided, and with the flood of requests that sometimes brings the Administrative State, people who could be doing things that are more productive than fielding these requests, that has really been a considerable issue in the last few years. I just want to call up an important point that you may professor pearlstein. We recently had a republican retreat, and if you want to see whos got the latter voice, with with what you guys have on twitter, literally every republic of member it was a ten to one differential. In terms of megaphone, it really makes your point. Back to you. I lead to my good friend miss lesko. Thank you id like to ask you a report for a practical vision on government efficiency, accountability and reform, that the Republican Study Committee which im a member produced. It offers a over 100 solutions which include reasserting congress is proper role and regulatory power. I think this is been an interesting discussion. We will see if anything comes of it. One of the things, i have a question for mr. Spalding. I think one of the things that i heard going in and out between Different Committee hearings that i am in, is that there is a suggestion to beef up the staff. So have kind of a non partisan alternative to the office of Legal Counsel and a congress. What are your thoughts on that mr. Spalding . Oh is thinking in general terms first. I think congress should not union all that union unilaterally disarm and kind of back and forth with the executive branch. It should have the strength it needs to do its work. The question to what exactly you need. You create a commercial budget, what is it that would help you best fight those battles i think that is just a practical question. In terms of having some sort of office of Legal Counsel, i dont see that necessarily as a problem. Why would you . I think the point, i was gonna tell mr. Raskin i will blatantly use legislative self help i like that thats great. I am not in complete agreement in a sense that each Branch Congress is first among equals, but each branch is a separate besting and takes that visiting seriously. It needs to have the tools to carry out its responsibility. If Congress Teams that it has need of these things, for that purpose, i think thats a perfectly legitimate reason to do so. I would like you to expand on the power of the purses, probably our biggest leverage that we have dealing with the executive branch. This was a case, i was in the state of Arizona Legislature for nine years. The same struggle happened between governor and legislative branch. The governor wants to take all the power, the legislative branch, usually gives it to him. So, you had brought up something about, could you expand more on the budgets sub committees and maybe if i heard it, right changing them up so theyre not really in line with the president ial budget but some kind of strategic yes i was just making a general point. My guess is you guys know all the stuff better than i do im not a budget expert. Im looking at it from a political point of view. I think it is the case that to control the budget in the modern era is to control the government. And that power has shifted a lot to the executive branch. One reason why you might need more people to help you do that. But also, you start thinking practically about how to exert, how should congress exert its power. Ive told this to Previous Congress is as well. The congress waits and waits and waits to get the situations and lo and behold it inevitably gets won by the executive. Your power is actually doing the oldfashioned work of Committee Work and budgeting and authorizations and the back and forth, because you do that number one, it is more likely you have a strong agreement about where you are on the budget, and there is no reason why you cannot pass them in a particular order. You can break them up into different pieces, you can pass 100 little budgets as far as i can tell. My point is, you should think strategically about what is the best way to do budgeting, not nearly as a budgeting exercise, but as a political exercise in terms of how do you best exert your constitutional powers as an institution visavis executive. It is your strongest power on the one hand, and you should go to your strength. Number two, you should think creatively about how to use that power. I think there are a lot of ways. Now is just an example we should think strategically about how to exert that power that gives you more leverage. So when it does come down later in the later in the budget process you are not caught in a position where they will win. Youve done the things youve got under your belt you want to get. Youve got to think strategically is my point. Thank you and i yield. Thank you i want to thank the chair Ranking Member for ranging this it is a really interesting, as youve noted bipartisan herring to address something that congress appears to have allowed to happen a non bipartisan basis over many many years. I wanted to focus a little bit on the National Emergencies act. We actually had a similar hearing and judiciary about a year ago. It also involved high level constitutional discussions on a bipartisan basis. You Congressional Research Service Tells Us that since that act was passed in the seventies, 56 National Emergencies have been declared by seven different president s, and that 60 of them are still in effect. So, a couple of you mentioned thumb possible fixes there, and i want to look at them professor pearl skiing i think you talked in your remarks about narrowing the delegation of power can you speak about that a little bit . Sure thank you and in fact i think there are a number of bills that are in the drafting stage that might effectively amend the National Emergencies act. Let me mention three. The first three potential approaches you might take. The first is narrowing or defining at all wooden emergency is, which the current tax does not do. You can come up with some definition of emergency that does not unduly constrain, the point of an emergency to have more flexibility than executive might otherwise have to respond to the contingencies that are anticipated. Theyve adopted in their constitutions or statutory authorities, emergency provisions that say things, like this has to be something that, for example threatens the life or the economy of the nation. This has to be something that is anticipated to be of limited duration. This is not an ordinary tool of say, economic sand shuns or the way we conduct policies every day. So actually defining emergency might be useful first step. I think it is critical to flip the switch over the authorization by which i mean, currently it takes in effect, the supermajority of congress terminate any emergency because it has to be a joint resolution. I think emergency should terminate automatically after certain period of time, unless Congress Acts affirmatively by simple majority vote to reauthorize them and again for certain limited period of time, i think is essential. One other point, not just mention here, i thought might have mentioned others in my testimonies i be happy to talk about it further. There is no current provisional provision of National Emergencies act legislation that requires so once the president declares an emergency it triggers access to 130 statutory authorities that might be used. There is no current provision in the nationals emergency act authority that says, you may only use those statutory authorities that are relevant to solving the emergency that you have identified. We could under the existing statutory scheme being the situation in which the president declares health emergency, but just use the coronavirus example, in which an emergency of Public Health emergency is declared, and for that reason we take additional funds to do constructions on the border. I dont mean to be partisan. I am choosing these examples but the point is, the president does not need every Emergency Authority in every emergency, and it is entirely possible to track the statue through minor amendment that would make the president only able to use those statutory authorities, that the president determines are necessary to adjust emergencies as identified. Professor park cash you talked about maybe a six suite sunset provision can you speak about that a little bit . I agree with much of what professor pearlstein has said. A definition of emergencies would be good. A timeframe is crucial. It is sort of embarrassing that president s are basically saying weve been in a state of emergency for 60 years. It changed the word of than any meaning. I think you need to act fine. The emergency declared in the authorities you are ex exercising will expire six weeks after congress returns. The constitution itself has provision, its about recess appointments, i dont think you need to give the president a year long emergency. I think a couple of weeks should be sufficient, and members of congress can decide, is this really an emergency . Or even if its not, do we agree with the policies that we want to implemented statutory . I was struck by both in your conversations and in the comments you submitted, the number of recommendations that overlap with the other Committee Representative would all, where weve talked quite a bit and ways in which we can deliver develop more room for discussion for legislating for bipartisan discussion. And these include calendar adjustments to increase the time in d. C. , longer work weeks, restoration of earmarks and staff resources. I think the doctor per cashew talked about congress needing to bulk up on it staffing. With any of you care to address that . I completely share the recommendation that congress is understaffed, significantly understaffed. Both with an offices and as an institution congress has a capacity to create, congress has the power to create and what it means. We have been snows members of congress and offices that are softs short staffed require expertise from different agencies. They do have wonderful experts in them, but it should be possible for congress to maintain and pay the kind of expertise, the kind of expert staff that it needs right here in the house. I think that has been one of the frustrations as a new member. I think i disagree a little bit, and maybe it is because two out of three committee i serve on our aggressively bipartisan, about not having the opportunity to speak with, or break bread with, are the members that frequently, but the pace of our time in d. C. Was kind of a very compressed fourday schedule where members have to step in and out just to get to the hearings and such, i think that is problematic and i hope we can make some movement in terms of the calendar system here. With that i yield back. Thank you. First of all i just want to comment on how much i appreciate this form. I appreciate all of you being here and your thoughtful testimony in which i had the chance with mr. Cole spend time over the weekend reviewing it. I want to that i want to thank the chair and Ranking Member i think youve done Great Service and justice to not only to us on the committee but to the country by having this discussion. I, like my colleague, miss scanlon and secretary chalet are new to the congress. Weve served for more than two decades so im trying to get acclimated to the congress and how we work. As i was thinking about this over the weekend, i had sort of three things that came to mind. The first was, how to restore the balance that the founders intended, which is what all of your testimony was about in the background material, and i want to thank the staff cause i think they did a terrific job and pulling materials together and the Congressional Research service and thank you for that. But how to restore that balance, and spare a fair amount of time to read through the material and think about it, recalling what weve all read through, the federal papers in college. The second was the question of restoring the balance is obviously critical one. The point here but what the framers intended secondarily, does that still work in the modern world . It is that balance possibly restored and is that the right form of government in the modern world . I think about to sort of general ideas. When is feasibility, with the issues that we have to deal with now. How quickly things develop and you compare that to the 18th century where things moved at a relatively modest pace compared to today. Today just within a few weeks we are talking about a virus that a month ago, few americans had paid any attention to, and now it is dominating just about every news cycle, and obviously there is concern about how quickly we react to it. We talked at length about military action and again, just the ability to be able to engage in military action compared to just two centuries ago. The complete difference in the ability to reach enemies, and now with air power and missiles, etc. It is momentary, rather than taking weeks if not months to sort of engage, and i think about even if feasibility in appropriations process which i had the privilege of now, i guess working through to. But the last one, we finished our appropriations process for a december fiscal year that starts october 1st, i mean are billeted to sort of come together and deal with it, so that is one thing. Second was, and i think mr. Cole and mr. Raskin touched on this and particularly, the practicality, given where the media is, and i dont mean just traditional media or social media, but the ability now for people to share information and to hold us accountable in ways that would we would have never been held accountable. I go to meetings with federal constituents and i say wear to a core sponsor of this bill which ive never even heard of. Its almost as if it is weaponize now, i dont know how many thousands of bills are introduced, but it is amazing the degree to which people not just hold you accountable and sort of broad rush themes about your philosophy of government, but in very pointed waves, about the issues that they care about, and if you havent sponsored or cosponsored a bill, or havent signed on until a letter. Obviously the volume that comes at us, im sure the senior members get much more attention, but it makes it nearly impossible to manage all that. I wondered about the practicality of some of the things that we talked about. I think the final thought that occurred to me was, i was reminded of walt kelly, an old cartoonist who modified an old phrase that we have met the enemy and he is us. We talk about a lot of ways that is forcing us to do our job under article one. So i do think about that. Its almost like were creating a goldberg machine to get us to do what is our Constitutional Authority and we have the ability to do. I did know it and looking at this, i was trying to remember an old Thomas Jefferson letter, which was which my staff put their hands on. He wrote to james madison, he was in paris at the time. Wrote it in september of 1780. Nine on similar grounds, it may be proved that no society can make a perpetual constitution or even a perpetual law, and he sort of gets into the conversation about with himself, the question of repeal versus what we would call today a sunset provision. He said every constitution, then and every lot naturally expires at the end of 19 years. Dont ask me where he came up with 19 years that is sort of interesting, i guess that was a generation in that era. Then he sort of concludes with a lot of limited duration, is much more manageable than one which needs repeal. His argument being you have to have a majority and a president to sign and repeal or agree to a change. Better to have a sunset, so i think some of the things we talked about sort of false along the lines that many people have kind down here sunsets maybe the best way to sort of addressed this because it is so much more, it is just so much more easier for us to period up periodically, depending on what were dealing with whether its every five years or ten years, or even less or timeframes. I did want to ask you a question, im not sure that everybody asked this i had to step out in may have been covered. Since im not burdened by legal education, i do not have the answer to all the questions i ask. I know all the out lawyers are supposed to have the answer but i dont have the answer to this. I am just sort of curious. About executive orders and whether or not in if any of the panelists want to just make any observations about the proper role of the executive order, and whether in the modern era they have now begun to expand into what are sort of legislative prerogatives, and whether or not we ought to be doing anything from a statutory point of view, in terms of putting limitations on the executive orders and he thought on that . I think its a wonderful calling question congressman. I tell my class that it is not the vehicle that matters, it is what is said in the order. You can call it Something Else and do the same thing. An executive order, whether legal or not depending on what the president has constitutional or statutory authority. Those are the underlying questions that really matter. I think president s have directives, they have a bunch of documents, they used to have proclamations they dont have much anymore. I dont think focusing on the formatting, i think its more helpful to think about well, do they have authority to do . This whether they do it or the agency does, it that is the ultimate question. Sometimes president s tell the agencies what to do any agency does it. But its really a president ial initiative. Its not coming from the agency. The most important thing that congress can do with respect to executive order orders that it doesnt like or doesnt agree with is override them by legislation. It is the simplest fix in the world. This constitutional fix in the. World isnt it, i guess what i was curious about is whether you observe that there is this has been an expansion, not only of the use of executive order or whether executive orders are becoming more bulky and pressing into us. I acknowledge that the congress can always repeal, but i assume you would have to do it by statue and you would have to require the signature of the president who had signed executive order in the first place. True. It becomes difficult. There are also ways, the way it usually works these days, is that they are challenged in court. The courts move faster than congress tends to move on these things. Potentially. Right. So in many circumstances, with respect to sort of longterm executive orders, i dont know, and im sure theres, i dont know executive orders have been with us for a long time. We may get them more frequently now than we used to, but we have had very broad executive orders and they were indispensably important in the mid and early 20th century as well. Certainly surrounding the wars that we fought. Executive orders have been a lot around for a long time. Congress acts, its not necessarily that the executive acting more through executive orders, its that congress is acting less. Any other observations . I think that the sheer volume of them that has vacillated over time, but i think in the current legislative landscape, theyre being used in the absence of legislation to address some very contentious issues, probably the best example of late would be immigration. We have not had substance of National Immigration legislation since 1986. And lgbt rights is another area. By doing a lot of this through executive order is putting the courts in a place of trying to interpret how to implement these orders and trying to guess what congress is intent might have been but not having a legislation to have a clear affirmation of that. I would agree with what has been set here. I think youre going to get the increase and the amount of executive orders with the executive has more over which they are responsible. They use this mechanism, whether its an order or a declaration to give instruction to those who are going to execute the law. Theyre actually pouring out their obligations to do so. But to the extent that there are discrepancies, or things that need to be interpreted, or areas where there is some discretion. They can use those mechanisms as ways to shape the meaning of the law at the very least, if not do something contrary to what Congress Wants, if it fails to act so, i dont think there necessarily a new or different problem in and of themselves. I think its i will go on much longer i just want to, i do think the points made about specificity and legislation is important. When i was in the state legislature i shared in the Insurance Committee for a while and i noted every bill that would be proposed by the governor. I would give all unlimited powers to our superintendent of insurance which i would immediately take out before we would enact anything because, i do think it is important for legislators to be writing laws. Not to simply delegate the details of some of you are gonna have obviously by rule. I think we would be better served to have much more specificity and what the congress is will is and give us latitude to the executive branch to do that. I also, again, i think looked at the, Something Like 25 of the American Public follows president trumps tweets. Roughly a little bit higher percentage follows obamas tweets. I forget who made the point here, but individual members of congress dont have the ability, the nature of what we do now is dramatically shifted in the nature of communications where, a president probably up until relatively recent history, would have to go through what was traditional media. When i was a kid growing up, you watched Walter Cronkite every night and whatever you saw on cbs news or other networks. It was really the way it was communicated from the executive or the white house and by the way from congress to the American Public. Now, it is so much different. The president s ability, i dont think the founders really thought congress would be the voice of the people. In one of these, talked about how each branch from article one to article three, each branch was less sort of, of the people. We were the branch that would be chosen by the people. The executive by the Electoral College which would be the will of the individuals of the people and individual states. And then the Supreme Court. Obviously through the president s nomination ramification by the senate. But now it has really changed. We go directly to the people. It is much more enhanced by the white house and the president any president then it is by individual members of the house and even of the senate and that is headed had a dramatic impact on the way that we do our work. Im not sure we can never put that genie back in the bottle. It is also injected of a whole new level of ambiguity. Is it tweet a policy statement . That has created endemic confusion on more than one occasion, both within our country and among foreign countries, and it may be an area that congress asserting itself could add some clarity on. What does constitution official action of the u. S. Government . I think its a great question. Obviously i dont think this president is going to be the last one to use twitter or other ways of communicating directly with the American Public. That is just the way it is going to be, and i think you raise an important point. Anyway i will conclude. I have many more questions but im not sure they would in any way out to the debate but i do want to thank the chair and the Ranking Member for a really important conversation. Thank you i share my colleagues view of thanking both of you for really important discussions. I have been on the other side of the executive side, and now on the legislative side. I have not been on the judicial side, but i understand and i want to point out to my colleagues from new york that, the street court does not require for appointments laughs so one way the Congress Delegates authority to the executive branch is also by drafting a badly drafted lead legislation. As someone thats has sat on the other side we would somehow celebrate a badly drafted piece of legislation because we could drive a car through it and do whatever we thought was best, or by delegating irresponsibility directly to the executive branch, when they did not want to make the decision. My example there is, point what congress did not want to decide whether individuals should import can be able to import drugs from another country. They said to the secretary you can do it, as long as you are willing to say it is safe and that it is costeffective to do those two, which put the secretary in the bind as opposed to congress in the bind. I can go through numerous examples, including hipaa where the congress could not agree. Kennedy cast a bomb, they agreed on the legislation but not on how it should be drafted and what the guidelines ought to be. It was sent over to the secretary of h. Ages to do those kinds of things. The point i want to make is about staffing. We are totally dependent in the legislature on the executive on telling us whether something actually can be implemented, or on special interest groups. We dont have the level of staffing to talk about what the implications are. With the impact of various policies would do. That suggests, not only do we need additional staffing, but we need a certain kind of staffing. It does me no good to have a conversation with young staff people who have some policy shops they think. But not necessarily, not necessarily can think through what the implementation challenges are. And who ought to implement it. And what theyre level of expertise states and needs to be done. I was once taught by a very smart secretary early in my career that we should stop writing regulations for people that have graduated with honors from harvard, as opposed to smart people who didnt, that needed to be able to implement those kinds of regulations. I just wanted to make that point. My final point, before i ask a question, its about the coronavirus. With all due respect to my distinguished colleagues from colorado, i actually dont think it should be an emergency anymore. I think we will see these viruses all along in what we have to talk about his readiness. Whether the government is permanently funded for readiness, to be able to have the flexibility to be able to deal with each of these viruses as they come along. We do have some experience in that. I want to ask professor pearlstein about that. The stepford act which was written actually for the creation of fema, actually has real limitations when an emergency is declared by the president. So it is possible to release Flexible Funding both resources as well as personnel, in a limited emergency act, which we can use as a backup for permanently funding Something Like the coronavirus. I wanted to ask your comments on that possibility as opposed to, just these never ending emergency situations . Thank you. I mentioned that other countries had drafted emergency legislation and other constitutions as well. Congress has drifted other emergency legislation that remains on the books and is vastly more specific, and i think effective and the exercise of executive power and the National Emergencies as you mentioned for example the Public Health, i forget the acronym exactly. But sam of these are vastly more specific. Im sorry. Delegating power to particular officials requiring the exercise for particular expertise, limiting in the finding terms like emergency oren necessity and limiting the kinds of powers that are going to be, that are going to be exercised. We have models at our fingertips literally. I think we would be foolish not to rely on them. The trick with the National Emergencies act in i. E. By the international and economic emergency right ha. Whatever it stands for, it is that these has become, instead of tools for dealing with actual emergencies, dealing with chronic, longstanding ordinary exercises of government power. When and under what circumstances are we going to impose economic sanctions sanctions or treat sanctions doing things that we disagree with. It is entirely possible indeed, i quite agree with you, necessary to do both at the same time. To have Emergency Powers that exist for certain limited periods of time, as we deal with a particular crisis, and at the same time make sure we are funding and maintaining not only the institutes that enable us to deal with emerging diseases which happen all the time and are likely to get worse, but enable us to deal with global Public Health surveillance and other things. We might want to be able to do all the time, not just during emergencies. Both are necessary, but at the moment we do a lot of our ordinary policymaking through these emergency authorities. Now that i have admitted that when like Congress Delegates authorities to the executives by badly drafted live legislations, also by making legislations more complex. I want to ask you all about shiver. Because it gives the executive tremendous powers it seems to me, and now that i am on the other side, i would like to find a way in which we could reverse that, or at least get more balance in the system, but that also means that we have to stop drafting bad logistics not bad legislation, but badly drafted legislation, and making legislation more complex, like the medicare act, by adding layers to it, that actually gives the executive more control. Can you comment on that . I agree with you representative. I think if Congress Wants to delegate, it can do so it is basically a presumption of delegation to the executive. I think congress can easily change that by saying we only need to delegate when we say were delegating. Chevron is just a rule of instruction of the core came with and we reputed theyd it. The effect would be that the courts themselves put aside the best interpretation of the good and messi statutes, not the executive. Which would yield more stability and prevent the sort of attempt to attempt to make a mark of this. Executive branch lawyers now strive to find problems and statutes that they can then say, there is a mess here and were basically being told to fix it through interpretation. I dont disagree with any of that. My former boss had the honor of clerking for the author of chevron and said during his life that he never imagined or intended that it would become this new rule of construction to the executive, rather he thought he was reinstating the rule that preexisted chevron which was, if the interpretation is reasonable, then courts are in a position to endorse that interpretation. But were interpretations are unreasonable, we will not endorse them. What makes reasonableness and an executive branson interpretation is for example, reference to record evidence and deference expertise and where those things are lacking. Then the interpretation is much more persuasive. This is an unusual time. To begin reversing majored decisions of the Supreme Court, but im equally a believer that deference as warranted where deference is deserved, and where you lack an internal executive branch process that came up with that interpretation or where you lack an internal executive branch referenced expertise or basis on expertise that actually support that interpretation, that the it makes much less sense. For the panel, i mean sometimes congress does what its supposed to do. For five years in a row nih funding is almost 40 . Cdc, 24 . 35 , new Infectious Diseases, and i say that simply because that was a conscious congressional policy that no matter what president obama acts for or trump acts for we were going to be prepared in these areas for exactly what is happening today. We cant debate resources. Thats congress deciding. If i can just tell you, i had this discussion with now chief of staff i said this is going this is going to happen. Your budget can reflect it, in which case you can take credit for it, or you can be really stupid and propose a cut, and what youre going to get beat up for it. I will leave you to decide which one he did. laughs it is going to happen, and for those of you who worry about how the budget wars go, with all due respect the appropriation wars to be more accurate, we win a lot more than we lose. We still look at president ial budget at the beginning of the year, which i will tell you, having graph executive budgets before, its never really a budget its a statement political gimmick anyway, but nothing like that emerges at the other end. It does not matter if its president obama we make them submit a budget so we can change it, and we get the last word on that. There is a lot of assertion of congressional power that actually goes on here. It is not quite as atrophied as you think. Our biggest problem is what we advocate and when we dont do things like immigration, and we dont do things like entitlement reform that we all know need to get done. I want to get more to the point. I want to thank all of you. Youve clearly put a lot of work through the papers. Your testimony has been excellent. We really appreciate the commitment of your time, your expertise in your thoughts. It is incredibly valuable. I think you have noticed how much they have enjoyed thinking about being members, thinking about the institutions, wondering again, how we can do our job better as from a bipartisan stance. Wondering how we can restore the appropriate constitutional balance. I think a lot of you had gave tremendous suggestions in that, which i hope mister chairman, we can sit down seriously, and talk about everything putting time limits on emergencies and all of these other things. I dont see that they should be partisan things that we cannot do together. Finally, i want to thank you. This discussion does not happen if you dont convene it. This is for the panel, way offside what we normally do. This is the Speakers Committee for a reason. Everybody appear is appointed by the speaker or the minority leader. We do not go through the normal confirmation process. Our job is shaping the legislation, but for the majority it can move it, if the minority offered the first line of defense and the first argument back. For us to undertake Something Like this is a very very unusual thing and would not have happened were not for our chairman and his concern, long term concern, about the institution, the appropriate balance, and be willing to use this as one of the appropriate instruments to bring it up. So gentlemen im very proud of, you very proud to be on this committee as your colleague, and very much thank you for what you have done here. It is a real contribution. I thank the gentleman from oklahoma and my friend for his comments. As you can see, we meet, and we see every piece of legislation that comes to the floor, the good, the bad, the ugly. I think were specially committed to this institution. On this committee, this range of political ideologies, from left to right, and everything in between. There are lots of policy differences that we have, but i think we all believe that over the years, that we have given up. Some of our Constitutional Authority in a way that is not good for the people we represent. I think it is not in keeping with keeping the constitution. It is just not good for the country. There are many reasons for that weve talked about a lot of that today. But the rules committee is also a committee that deals with issues and procedures and processes. So to the extent that there are tweaks or changes in how we approach some of these issues, this is actually the right committee to be talking about all the stuff. I look forward in the coming days and weeks to work with mr. Cole and others, to determine what the next steps will be. Some might be low hanging fruit, and we might be able to move more expeditiously on those. Our subcommittees can delve more and detail on some of the subjects. The whole point of this is not just having an intellectual discussion on whatever. It is to actually figure out whether we can take some next steps and actually change things for the better. I want to say thank you to all of you. As youve probably all noticed you testified before other committees other committees have time limits. I want to be very honest you have to keep this to yourself. Weve had a very very long hearings here. Sometimes a lot of the times, its members of congress that are sitting where you are testifying in the go on and on and on. Im telling you between us, sometimes i look at when it goes on forever, i look at the chandelier and i start to dangerous. And i tell the chandelier please fall. laughs it has never happened, but i want you to know and this is a compliment, not for a second that i think that during this hearing today. So this is the highest compliment i can pay to all of you i mean it. It has been very helpful and we look forward to working with you as we flush out some of these ideas. I dont think ill ever look at the chandelier the same way. Lets just keep it in this room a. Okay with that the committee is adjourned thank you
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