[Congressional Record Volume 165, Number 36 (Wednesday, February 27, 2019)]
[Senate]
[Pages S1531-S1533]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                   Declaration of National Emergency

  Mr. President, I come to the floor with respect to another critical 
issue facing this Senate right now. I would just start by noting the 
fact that earlier this week, in this very Chamber, the senior Senator 
from Nebraska, Mrs. Deb Fischer, gave the annual reading of George 
Washington's Farewell Address, reminding all of us of the advice that 
our first President gave our country upon his resignation. He 
encouraged us to review the words of his farewell address frequently as 
the ``disinterested warnings of a parting friend, who can possibly have 
no personal motive to bias his counsel.'' Those were the words of 
George Washington in his farewell address as he gave us all some 
warnings and admonitions.
  Maryland is particularly proud of the fact that President Washington 
resigned his military commission in Annapolis, in our Old Senate 
Chamber. Every year, in the Maryland Senate, where I once served, we 
honor President Washington for Presidents Day. One year, I had the 
honor of giving the commemorative address on that occasion, and I 
appreciate the fact that the U.S. Senate recognizes the extraordinary 
farewell address delivered by our first President. His words of warning 
have been prescient throughout history, from his caution against 
internal divisions, including geographic divisions between the North 
and the South, to the necessity of avoiding foreign entanglements that 
would imperil our own unity.
  At this particular moment in time, as we reflect on President 
Washington's Farewell Address, we have to do it in the context of the 
current President's extraordinary, unnecessary, and, I believe, totally 
unlawful declaration of emergency powers for the sole purpose of 
diverting taxpayer money, which has been previously appropriated by 
this Congress, to a different purpose, especially to build a wall along 
our southern border. In that context, we really need to reflect on the 
words of our first President and remember that our Constitution 
entrusts us, through article I, as a coequal branch of government, to 
do our duty under the Constitution.
  We know the history. We know that after winning our independence from 
England, President Washington, along with many of our other Founders, 
was concerned with the possibility of authoritarianism and of the 
critical need to build checks and balances into our political system. 
Here is the key warning in the farewell address on this score: ``The 
habits of thinking in a free country should inspire caution in those 
entrusted with its administration to confine themselves within their 
respective constitutional spheres, avoiding in the exercise of the 
powers of one department to encroach upon another.''
  President Washington argued that this encroachment of one branch of 
government on the constitutional powers of another is a natural impulse 
and one that we must guard against as a self-governing people because 
of the ``love of power and proneness to abuse it,'' and that is why 
checks and balances are necessary to prevent it.
  He went on to write:

       The necessity of reciprocal checks in the exercise of 
     political power, by dividing and distributing it into 
     different depositaries and constituting each the guardian of 
     the public weal against invasions by the others, has been 
     evinced by experiments ancient and modern, some of them in 
     our country and under our own eyes. To preserve them must be 
     as necessary as to institute them.

  Now let's review what just happened here in our political system in 
the last couple of weeks. Just a few weeks ago, President Trump, after 
failing to achieve his desired outcome through the legislative process, 
through congressional action, decided that he would bypass the Congress 
by declaring

[[Page S1532]]

a national emergency in order to redirect funding to build the wall. 
This is a textbook example of the kind of power grab by an executive 
branch that George Washington warned us about in his farewell address.
  President Trump is claiming he has this authority pursuant to the 
National Emergencies Act of 1976, but a review of the legislative 
history of the National Emergencies Act demonstrates that it was passed 
not to expand Presidential power but to curb it. Three years earlier, 
Congress's Special Committee on the Termination of the National 
Emergency was created to end outdated emergency declarations and, 
according to the committee's report at the time, ``recommend ways in 
which the United States can meet future emergency situations with speed 
and effectiveness but without relinquishment of congressional oversight 
and control.'' That was what the special committee's report concluded, 
and that formed the basis of the legislation that followed.
  The National Emergencies Act gives the President very, very narrow 
and conditioned-based authority to declare an emergency and specify the 
steps necessary to confront it, and it gives Congress the authority, as 
we saw in the House just yesterday, to pass legislation to disapprove 
of and to terminate the emergency. Of course, it will also be subject 
to court review. I would suggest that it is not our job to pass laws 
which we know to be unconstitutional and simply leave it to the courts 
to reach the obvious conclusions. We have a responsibility here in this 
Chamber, not only under the Constitution but under the very statute the 
President proposes to use now for his declaration, to apply our 
authority and responsibility as a coequal branch of government.

  Now let's review the context of this decision. The President's 
interest in spending billions of dollars of taxpayer money for a wall 
along the southern border was not a secret to Congress. Of course, 
during the campaign--as a matter of his campaign pledges and as he 
continues to insist--he did say that at the end of the day, Mexico will 
pay for it. Yet, for the purposes of today, that is not the main point. 
The point is that the President had told this Congress that it was his 
intention to try to spend billions of dollars to build a wall.
  His original budget request to the Congress for the fiscal year that 
we are in was $1.6 billion. That was the budget request we got from the 
Senate Appropriations Committee. Then, last fall and last winter, in 
December, the President began demanding much higher amounts for the 
wall he wants to build. In fact, in his meeting with then-Democratic 
Leader Nancy Pelosi and Democratic Leader Schumer on December 11, here 
is what the President said: If we don't get what we want, one way or 
the other, through you or the military or anybody else, yes, I will 
shut down the government.
  That was in December. What the President was saying was that if he 
doesn't get his appropriations--the budget request--through the 
Congress, he was going to shut down the government. He did, and he did 
that for 35 days. That was his constitutional prerogative not to sign a 
bill. It, obviously, caused great harm and dislocation around the 
country. It caused a lot of economic pain and a lot of personal 
financial pain to millions of Americans, but the President clearly had 
the authority to do that.
  As the Congress, we were aware of the President's position. He made 
it very clear. Then, after the government shutdown was over, of course, 
we passed that short-term piece of legislation to keep the government 
open for 3 weeks as we worked on a longer term budget plan.
  Around February 14 of this year, we passed a compromise budget bill--
a compromise appropriations bill. That bill provided $1.375 billion for 
55 miles of pedestrian and levee fencing along the U.S. border with 
Mexico. That bill passed the U.S. Senate by a vote of 83 to 16, and it 
passed the House of Representatives by a vote of 300 to 128. As with 
most bills that pass the Congress with those kinds of bipartisan 
majorities that are compromises, it didn't have everything everyone 
wanted. It had some things in it that one side or the other may not 
have wanted, but it was a compromise, and it was made necessary to pass 
a bill to keep the government open. It was to make sure our 
constituents received the services of their government and to make sure 
that we met the needs of the country.
  On the very morning that we considered that bill here in the Senate 
Chamber, President Trump was considering his next steps. In fact, 
Majority Leader McConnell announced on the floor here that President 
Trump had told him that he was going to sign the bill but that he was 
also going to sign an emergency declaration to override the 
appropriations in the bill and divert those moneys to some other 
purpose that Congress had not authorized. In fact, while Senator 
McConnell was making that statement at the time we were considering and 
voting on the bill, it was not a surprise that the President had been 
considering it. He had been talking for weeks and threatening the 
Congress that if he didn't get the appropriations levels he wanted for 
the wall--if he didn't get the budget allocation he wanted--he was just 
going to declare a national emergency and do it himself. That was his 
threat.
  Clearly, he hoped that threat would force Congress to provide the 
extra moneys the President requested for the wall, but the Congress 
didn't do the President's bidding. We passed that compromise bill by 
those large bipartisan majorities. So what did the President do? Of 
course, he declared this emergency.
  I should note that even as he announced his emergency declaration in 
the Rose Garden, the President said: ``I could do the wall over a 
longer period of time. I didn't need to do this . . . but I'd rather do 
it much faster.'' That is what the President said at the time. He said 
he didn't need to do this, not in that way, but he wanted to do this 
quickly.
  Here is the thing. He didn't need to do it. He made it very clear 
that he decided to do it simply because he didn't get what he wanted 
from the U.S. Congress; that because we didn't do what the President--
what the Executive asked, heck, he was going to declare some emergency 
to divert money from areas the Congress had approved on a bipartisan 
basis to some other area the President wanted to spend money on, in 
this case the wall.
  Now, look, the Constitution is pretty clear. The President had the 
power to veto that bill. He, of course, had refused to go along with an 
earlier proposal, and that led to a 3-week government shutdown. The 
President could have done that again. That would have been in his power 
to do it, and of course the choice for the Congress at that point would 
have been whether to override the President's veto.
  If you look at the size of the votes that appropriations bill passed 
by--83 to 16 in the U.S. Senate and 300 to 128 in the House--he could 
have overridden the veto. That would have been the constitutional way 
for the President of the United States to try to get his way, but that 
is not what he did. He decided to do something different, declare an 
emergency in an unconstitutional way.
  The question we have to ask ourselves--and I am talking Republicans 
and Democrats, and I am talking about the Senate as an institution, the 
House of Representatives as an institution--is should this President or 
any other President--or any other President--be able to override an 
appropriations law to the tune of billions of dollars right after 
Congress has already expressed its position in a bill that we passed by 
overwhelming majorities or by any majority, a bill that passed.
  In declaring this alleged emergency, the President has announced his 
intention to divert $2.6 billion from the Department of Defense 
counterdrug activities. This is an ironic diversion, considering the 
President's stated concern, which I share, about drug trafficking.
  The Defense Department has indicated that those moneys the President 
is proposing to take from drug trafficking are being spent for that 
purpose and that only about $85 million remains in that account. So 
that means they are going to have to take other moneys from other 
Defense Department priorities, and the President has indicated they 
want to take $3.6 billion from military construction accounts--moneys 
that this Congress, on a bipartisan basis, has already appropriated for 
those military construction projects.
  Article I is crystal clear. Article I of the Constitution vests this 
Congress--

[[Page S1533]]

this Senate and the House of Representatives--with the power of the 
purse.
  I have my handy, small Constitution right here, and I would just 
again like to remind our colleagues that it says: ``No money shall be 
drawn from the Treasury, but in Consequence of Appropriations made by 
Law, and a regular statement and account of the receipts and 
expenditures of all public money shall be published from time to 
time.''
  So article I of the Constitution is very clear. It is the U.S. 
Congress that has the power of the purse and has the authority to 
direct taxpayer moneys to the priorities that we decide.
  I ask my colleagues whether they are prepared to relinquish that 
authority. In fact, I would make the point it is really not ours to 
relinquish because the Constitution is quite clear on this point.
  We all know that yesterday the House of Representatives took a vote 
to say the President is not able to use the particular law he used the 
other day to declare an emergency. This Senate is going to be voting on 
that soon, and we have to ask ourselves as Senators what kind of 
precedent we want to set.
  Do we want to adhere to our duties under the Constitution? Should any 
President be able to say, ``Oh, my goodness. I don't like what the 
Congress just did. I don't like the fact that the Congress, through 
their duly elected Representatives and duly elected Senators, didn't 
give me all the money I wanted for the wall, and so I am going to throw 
the Constitution out, and I am going to take money that the Congress 
proposed for one purpose, and I am just going to move it somewhere 
else''?

  I want my colleagues to think really carefully about the precedent we 
would be establishing if we allow that action to go unchecked.
  We were just having a conversation here on the floor, my colleague 
from the State of Maryland and others, about the dangers and risks of 
climate change. That is a real crisis. I believe we should be investing 
a lot more funds in building out our clean energy infrastructure.
  We may well have a future President, maybe sooner rather than later, 
who wants to do that. I just ask my colleagues whether they think that 
President should be able to declare a national emergency and spend 
money for that purpose even if this Congress has not appropriated the 
moneys for that purpose.
  The idea that the President of the United States--any President of 
the United States--is going to declare an emergency simply because he 
or she did not get the appropriations request they asked for is 
unprecedented. We have looked. There have been times when people have 
declared emergencies, but we were not able to find any time where we 
have a situation like this, where a President, who tried to get a 
certain appropriation for a certain purpose out of Congress, didn't get 
it and immediately turned around and asked for a national emergency to 
do what the Congress had just denied them the authority to do.
  Just this morning President Trump's adviser, Kellyanne Conway, was on 
``FOX & Friends'' and said the President had to act because Congress 
didn't. In other words, the President had to act because Congress, on a 
bipartisan basis, through its duly elected representatives, did not 
give the President of the United States, the Executive, what the 
Executive asked for. That is why the President gets to declare an 
emergency.
  That would create a lawless situation and a gross violation of our 
Constitution.
  She went on to say: ``It's failed to do its job since he has been 
President on securing the border, and it has failed to do its job for 
decades, and so he waited for them.'' In other words, because the 
President is dissatisfied with what the Congress did, he gets to tear 
up the Constitution and go his own way.
  Back in 1983, when President Reagan was frustrated with the Congress 
and its control of the budget, he received a letter urging him to 
declare a state of emergency over our Nation's finances. In response, 
President Reagan acknowledged his frustration but wrote: ``I don't 
believe the President has the power to declare an emergency short of 
war.''
  I urge my colleagues--I urge my colleagues--to be cautious in 
allowing any President to use or claim an emergency in order to 
undercut the clear division of power set forth in the Constitution 
between the legislative and the executive branch.
  Yesterday Leader McConnell was asked about the legality of President 
Trump's move, and the majority leader acknowledged he ``hadn't reached 
a total conclusion'' on whether President Trump is acting legally.
  Think about that. You have the majority leader acknowledging that the 
President may be acting unlawfully. I think it is pretty clear on its 
face for those who closely examine the Constitution and the power of 
the purse.
  I think we are all called upon not as Republicans or Democrats but as 
Americans and as Senators in this Chamber to do our job and reject what 
is clearly an unconstitutional power grab. We should not passively 
submit to these actions. We should think about what we are going to do 
in light of the precedent that is being set here, and I hope we will do 
our jobs.
  I will just close with another statement from President Washington's 
Farewell Address where he cautioned against allowing any one branch of 
government to claim excessive power, even with the best of motivations. 
``Let there be no change by usurpation; for though this, in one 
instance, may be the instrument of good, it is the customary weapon by 
which free governments are destroyed.''
  In my view, the President's actions are not for the good, but I know 
many of my Republican colleagues would agree with the ends the 
President seeks with respect to using more moneys to build a wall. I 
understand that is the position of our Republican colleagues, but what 
George Washington warned us about was--whether we like what the 
President is doing or don't like what the President is doing--if the 
President is diverting money away from the purposes this Senate and the 
House of Representatives directed to some other purpose this President 
or any other President may want that we have not authorized, that is a 
gross usurpation of power, and we should not allow it to happen.
  So I ask my colleagues, let's join together to do the business of the 
Senate, protect the Constitution, and do our jobs.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico.