[Congressional Record Volume 165, Number 37 (Thursday, February 28, 2019)]
[Senate]
[Pages S1569-S1570]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   DECLARATION OF NATIONAL EMERGENCY

  Mr. ALEXANDER. Mr. President, President Trump has been in Vietnam 
this week, meeting with the North Korean leader, Kim Jong Un. I applaud 
the President for his efforts to improve the U.S. relationship with 
North Korea.
  There is not a more difficult relationship anywhere in the world at 
this time than that relationship. But I am glad he chose not to seek a 
deal just for the sake of a deal.
  As he returns from his summit with the North Korean leader and turns 
his attention back home, I want to make a respectful suggestion, and 
that is this: that President Trump ask his lawyers to take a second 
look at existing funding authorities that the President has to consider 
construction of the 234 miles of border wall that do not require a 
formal declaration of a national emergency.
  I support what the President wants to do on border security, but I do 
not support the way he has been advised to do it. It is unnecessary and 
unwise to turn a border crisis into a constitutional crisis about 
separation of powers when the President already has congressional 
funding authority to build the 234 miles of border wall that he 
requested in his January 6 letter to the Senate.
  Mr. President, I ask unanimous consent to include in the Record 
following my remarks the text of the President's January 6 letter to 
the Senate Appropriations Committee.
  Mr. President, there has never been an instance in which a President 
of the United States has asked for funding, Congress has refused it, 
and the President has then used the National Emergency Act to justify 
spending the money anyway.
  If President Trump can build a wall when Congress has refused to 
provide the funding, then the next President can declare a national 
emergency and tear the wall down or declare climate change an emergency 
and stop oil exports and offshore drilling. There is no limit to the 
imagination of what the next leftwing President could do to harm our 
country with this precedent.
  After an American revolution against a King, our Founders chose not 
to create a Chief Executive who could tax the people and spend their 
money any way he chose. The Constitution gave that responsibility 
exclusively to a Congress elected by the people, and every one of us 
U.S. Senators has taken an oath to support that Constitution.
  Separation of powers is a crucial constitutional imperative that goes 
to the very heart of our freedom.
  I don't know how the late Justice Antonin Scalia would have decided a 
case on this matter, but I do know what he said about separation of 
powers, and this was what Justice Scalia said:

       Every tin horn dictator in the world today . . . has a Bill 
     of Rights. That's not what makes us free. . . . What has made 
     us free is our Constitution. . . . The word ``constitution'' 
     . . . means structure. That's why . . . the framers debated 
     not the Bill of Rights . . . but rather the structure of the 
     federal government. The genius of the American constitutional 
     system is the dispersal of power. Once power is centralized 
     in one person, or one part [of our government], a Bill of 
     Rights is just words on paper.

  That was Justice Scalia.
  The President can avoid this dangerous precedent completely. He can 
use the congressional funding authority he already has to build the 234 
miles of wall that he asked Congress to approve in the January 6 letter 
that I submitted for the Record.
  Here is how this would work. On January 6 of this year--last month--
in his letter to the Senate Appropriations Committee, the President 
requested $5.7 billion to build 234 miles of new physical barrier on 
the southern border.
  Then, on February 14, a couple of weeks ago, Congress passed the 
Homeland Security appropriations bill, which provided $1.375 billion to 
build 55 miles that the President had asked for.
  On February 15, the day he signed the Homeland Security 
appropriations bill, President Trump announced that he would use two 
additional sources of funds that had already been approved by Congress, 
which could be used to fund the border wall.
  The first was $601 million from the Treasury Forfeiture Fund. The 
second was up to $2.5 billion from the Department of Defense accounts 
to support counterdrug activities and to block drug-smuggling corridors 
across international boundaries.
  The President is authorized to do this because of a provision in law 
that allows him to transfer up to $4 billion among the accounts of the 
Department of Defense. That is $4 billion in a Department of Defense 
budget of about $600 billion.
  These three sources of funding that I just mentioned add up to about 
$4.5 billion or $1.2 billion less than the $5.7 billion that the 
President requested in his January 6 letter.
  So where does he get the rest of the money? He can get it by 
transferring $3.7 billion instead of $2.5 billion from the Department 
of Defense accounts to support counterdrug activities. Then the 
President would be able to build the 234 miles of wall he requested on 
January 6, and he would not need to declare a national emergency.
  To be specific, this means the President would use $1.375 billion 
from the Homeland Security appropriations bill plus $601 million from 
the Treasury Forfeiture Fund plus $3.7 billion from the Department of 
Defense accounts to support counterdrug activities, which would add up 
to equal his full $5.7 billion request to build 234 miles of border 
wall.
  If my analysis is incorrect, I hope that the President's lawyers will 
tell me.
  Using funds already approved by Congress avoids the constitutional 
crisis of separation of powers. Using funds already approved by 
Congress avoids establishing a dangerous precedent, which could be 
misused by subsequent Presidents. Using funds already approved by 
Congress avoids taking money from military construction projects 
specifically approved by Congress for such activities as military

[[Page S1570]]

barracks and hospitals. And using funds already approved by Congress 
avoids months or years of litigation, which could make it unlikely that 
the full 234 miles are ever built.
  It may be a couple of weeks before the Senate votes on a resolution 
regarding the national emergency declaration, so we don't know yet 
exactly what we will be voting on. There is time for the President's 
lawyers to take another look and determine whether we can both build 
the 234 miles of border wall that the President has asked for and avoid 
this dangerous precedent. Then the Senate could both support the 
President's border request and be faithful to our oath to support a 
Constitution that creates separation of powers as a crucial check on 
Executive power that goes to the very heart of our freedom.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

          Executive Office of the President, Office of Management 
           and Budget,
                                  Washington, DC, January 6, 2019.
     Hon. Richard Shelby,
     Chairman, Committee on Appropriations,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: The President continues to stress the 
     need to pass legislation that will both reopen the Federal 
     Government and address the security and humanitarian crisis 
     at our Nation's Southwest border. The Administration has 
     previously transmitted budget proposals that would support 
     his ongoing commitment to dramatically reduce the entry of 
     illegal immigrants, criminals, and drugs; keep out 
     terrorists, public safety threats, and those otherwise 
     inadmissible under U.S. law; and ensure that those who do 
     enter without legal permission can be promptly and safely 
     returned home.
       Appropriations bills for fiscal year (FY) 2019 that have 
     already been considered by the current and previous 
     Congresses are inadequate to fully address these critical 
     issues. Any agreement for the current year should satisfy the 
     following priorities:
       --Border Wall, Customs and Border Protection (CBP): The 
     President requests $5.7 billion for construction of a steel 
     barrier for the Southwest border. Central to any strategy to 
     achieve operational control along the southern border is 
     physical infrastructure to provide requisite impedance and 
     denial. In short, a physical barrier--wall--creates an 
     enduring capability that helps field personnel stop, slow 
     down and/or contain illegal entries. In concert with the U.S. 
     Army Corps of Engineers, CBP has increased its capacity to 
     execute these funds. The Administration's full request would 
     fund construction of a total of approximately 234 miles of 
     new physical barrier and fully fund the top 10 priorities in 
     CBP's Border Security Improvement Plan. This would require an 
     increase of $4.1 billion over the FY 2019 funding level in 
     the Senate version of the bill.
       --Immigration Judge Teams--Executive Office for Immigration 
     Review (EOIR): The President requests at least $563 million 
     for 75 additional Immigration Judges and support staff to 
     reduce the backlog of pending immigration cases. The 
     Administration appreciates that the Senate's FY 2019 bill 
     provides this level of funding, and looks forward to working 
     with the Congress on further increases in this area to 
     facilitate an expansion of in-country processing of asylum 
     claims.
       --Law Enforcement Personnel, Border Patrol Agent Hiring, 
     CBP: The President requests $211 million to hire 750 
     additional Border Patrol Agents in support of his promise to 
     keep our borders safe and secure. While the Senate's FY 2019 
     bill supports some Border Patrol Agent hiring, fulfilling 
     this request requires an increase of $100 million over the FY 
     2019 funding level in the Senate version of the bill.
       --Law Enforcement Personnel, Immigration and Customs 
     Enforcement (ICE): The President requests $571 million for 
     2,000 additional law enforcement personnel, as well as 
     support staff, who enforce our U.S. immigration laws and help 
     address gang violence, smuggling and trafficking, and the 
     spread of drugs in our communities. This would require an 
     increase of $571 million over the FY 2019 funding level in 
     the Senate version of the bill.
       --Detention Beds, ICE: The President requests $4.2 billion 
     to support 52,000 detention beds. Given that in recent 
     months, the number of people attempting to cross the border 
     illegally has risen to 2,000 per day, providing additional 
     resources for detention and transportation is essential. This 
     would require an increase of $798 million over the FY 2019 
     funding level in the Senate version of the bill.
       --Humanitarian Needs: The President requests an additional 
     $800 million to address urgent humanitarian needs. This 
     includes additional funding for enhanced medical support, 
     transportation, consumable supplies appropriate for the 
     population, and additional temporary facilities for 
     processing and short-term custody of this vulnerable 
     population, which are necessary to ensure the well-being of 
     those taken into custody.
       --Counter-narcotics/weapons Technology: Beyond these 
     specific budgetary requests, the Administration looks forward 
     to working with Congress to provide resources in other areas 
     to address the unprecedented challenges we face along the 
     Southwest border. Specifically, $675 million would provide 
     Non-Intrusive Inspection (NII) technology at inbound lanes at 
     U.S. Southwest Border Land Ports of Entry (LPOE) would allow 
     CBP to deter and detect more contraband, including narcotics, 
     weapons, and other materials that pose nuclear and 
     radiological threats. This would require an increase of $631 
     million over the FY 2019 funding level in the Senate version 
     of the bill.
       In addition, to address the humanitarian crisis of 
     unaccompanied alien children (UACs), Democrats have proposed 
     in-country asylum processing for Central American Minors. 
     This would require a statutory change, along with 
     reallocation of State Department funds to establish in-
     country processing capacities at Northern Triangle consulates 
     and embassies. Furthermore, for the new procedure to achieve 
     the desired humanitarian result, a further corresponding 
     statutory change would be required to ensure that those who 
     circumvent the process and come to the United States without 
     authorization can be promptly returned home. Without the 
     latter change, in-country processing will not reduce the 
     unauthorized flow or successfully mitigate the humanitarian 
     crisis.''
       These upfront investments in physical barriers and 
     technology, as well as legislation to close loopholes in our 
     immigration system, will reduce illegal immigration, the flow 
     of illicit drugs entering our country and reduce the long 
     term costs for border and immigration enforcement activities.
       The Administration looks forward to advancing these 
     critical priorities as part of legislation to reopen the 
     Government.
           Sincerely,
                                                Russell T. Vought,
                                                  Acting Director.

  Mr. ALEXANDER. I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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