[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.
____________________