[Congressional Record Volume 165, Number 38 (Monday, March 4, 2019)]
[Senate]
[Pages S1612-S1613]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                   Declaration of National Emergency

  Mr. CORNYN. Mr. President, despite what you hear inside the beltway, 
the challenges along our southwest border are real, and the people of 
Texas feel that impact every day along the 1,200-mile common border we 
have with Mexico.
  Last week, for example, the Border Patrol in the Rio Grande Valley 
Sector arrested 1,300 illegal immigrants in a single day--the second 
time in 2 weeks they exceeded that number. In the same time period, the 
Laredo port of entry seized $2.3 million worth of cocaine and 
marijuana. Sadly, a father and son traveling from Guatemala nearly 
drowned while attempting to cross the Rio Grande but were saved thanks 
to the efforts of the Border Patrol. In a small town just north of 
Eagle Pass, a group of 90 undocumented immigrants--many of whom were 
women and children between the ages of 1 and 17--were apprehended after 
crossing the Rio Grande River. That was all in Texas last week.
  Last year alone, 400,000 people were detained coming across our 
southwestern border--400,000. Tens of thousands of unaccompanied 
children and family units were detained as well.
  These stories have become so common, somehow we have become 
anesthetized to the human emergency and crisis occurring along the 
border. Frankly, I do not understand why our Democratic friends have 
become completely apathetic when it comes to border security or dealing 
with what President Obama himself called a humanitarian crisis.
  A few weeks ago, we know President Trump declared a national 
emergency over this crisis, which would allow some funding to be 
shifted from other areas to support our Border Patrol missions. This 
decision was met with a great deal of pushback, some of which I believe 
is warranted and some of which I believe is not. I would like to 
explain what I think is warranted and what I think is not.
  For those, like some of our colleagues across the Capitol, including 
some of the Texas Democratic delegation--they call this a fake 
emergency. I couldn't disagree more. Just ask the folks who live along 
the border and deal with this each day. The scenes I describe are not 
isolated incidents; they are happening daily, weekly, monthly, and at a 
scale and volume that, frankly, are overwhelming the ability of 
officials and people along the border to deal with.
  Let's rewind to 2014. I alluded to this a moment ago. When President 
Obama was President, we saw an unprecedented number of Central 
Americans coming across the border claiming asylum. That year, 68,000 
family units were apprehended at the southern border--``family units'' 
meaning at least one adult and at least one child. That is what 
President Obama called a humanitarian crisis.
  Today, not much has changed except for the numbers, and it has gotten 
worse, not better. In the last 4 months alone, there have been nearly 
100,000 family units apprehended at the border. These are people 
arriving en masse by the thousands, sometimes called a caravan. We know 
there are dangerous drugs that come in at the same time every day, 
young women and children are being trafficked into sex slavery, and 
migrants are being abandoned by coyotes and left to die in the desert.
  So I don't see a lot of difference between what President Obama 
called a humanitarian crisis in 2014 and what President Trump in 2019 
calls an emergency.
  While I agree that there is a crisis at our border and that more 
needs to be done, I have been consistent in my concerns about the means 
by which this funding is being provided.
  This whole episode is completely contrived by the fact that the 
Speaker of the House, Ms. Pelosi--despite the fact that we had 
bipartisan support for the Secure Fence Act in 2006 and 2008, she all 
of a sudden decided, because the politics suited her, that building any 
additional physical barrier was immoral. The Democratic leader here in 
the Senate said that not one dollar was going to be spent for physical 
barriers along the border. We saw an impasse that resulted in the 
Federal Government or at least 25 percent of the government being shut 
down for 35 days. This was completely unnecessary and contrived. This 
was all about politics and certainly not about trying to find solutions 
to the problem.
  I have said before and I will say again that where we are now was not 
anybody's first choice--certainly not mine. We know that many 
legitimate concerns have been raised about the clear definitions of the 
role of the legislative and executive branches. It is clear under the 
separation of powers that Congress holds the checkbook. No matter who 
the President is or what they want funding for, it must be authorized 
by Congress. But when Democrats refuse to engage in a problem-solving 
process, as they have done over the last few months, it makes things 
much more complicated.
  We heard the Speaker of the House, as I said, refuse to provide more 
than one dollar for border security. The minority leader said that no 
additional money would be provided for barriers. The reason they made 
these statements isn't because Democrats are all of a sudden opposed to 
improved border security. As we have seen in the past, Democrats have 
supported those physical barriers. In 2006, the Democratic leader 
himself and a number of our current colleagues and then-colleagues, 
such as Hillary Clinton and Barack Obama, supported the Secure Fence 
Act, but today, somehow things are different.
  Democrats refuse to come to the negotiating table, not because they 
are against border security, presumably, but because their political 
base dislikes the man sitting behind the Resolute Desk. This is not 
about the facts or the problem presented; this is about whether 
President Trump will be defeated in his attempts to get additional 
money for border security. As the President found out, it is pretty 
tough to find a compromise when your negotiating partners--the Speaker 
and the Democratic leader of the Senate--refuse to come to the table at 
all. So the President found himself negotiating against himself.
  I believe the regular appropriations process should always be the 
approved method, but, of course, Congress--and this should be a wake-up 
call to each of us--Congress has approved emergency powers as an 
exception to the normal process by which money is appropriated.
  While some are trying to make this seem like a constitutional crisis 
and some groundbreaking breach of power by President Trump, I don't 
believe that is true, because he is using the power that was delegated 
to the executive branch by Congress. In other words, he is not making 
this up out of whole cloth, like President Obama did when he provided 
deferred action for childhood arrivals. He said more than 20 times that 
he didn't have authority to do it, that there was no statute to 
authorize it, but he did it anyway. It continues to be litigated--now 
up to the Supreme Court of the United States.
  Here is what I found when this controversy arose, when we did some 
research. We found that Congress has granted the Presidency emergency 
powers under 123 statutes. This marks the 60th time the emergency 
powers have been invoked under the National Emergencies Act since 1978. 
So Congress is responsible for providing this exception to the normal 
appropriations process. Congress has done that 123 times, and 
Presidents have used those powers 60 times. That ought to put what is 
happening today in some larger context. Previous Presidents have used 
them for things like prohibiting the importation of blood diamonds from 
Sierra Leone or prohibiting new investment in Burma.
  Because the President's emergency declaration fits into the confines 
of the

[[Page S1613]]

authorities Congress has given him, this is not a constitutional 
crisis, in my view, as some people are painting it to be, but I am 
concerned about the process for a few reasons.
  One, as a number of our colleagues have pointed out over the last few 
weeks, it does set a precedent. A use of these powers in circumstances 
under which a conference committee has already come up with a dollar 
amount for border security that was ultimately signed by the President 
and he declared a national emergency on top of that in order to gain 
access to additional money--I do worry that this sets a precedent 
whereby a future President could abuse this authority.
  These 123 congressional grants of authority to Presidents--any 
President--are broad, and they cover everything from the military, to 
public health, to Federal pay schedules. Some are pretty unremarkable, 
such as the one that allows the Secretary of Transportation to waive 
vehicle weight limits on a stretch of Interstate 95 in Maine. That is 
one of the congressional delegations of authority. Others are more 
alarming, such as the one that would authorize the President to suspend 
a law prohibiting the testing of chemical and biological weapons on 
human subjects.
  What I find most concerning is that the definition of an 
``emergency'' is very vague and subjective, which means it is going to 
end up being the subject of litigation. Yes, lawsuits have already been 
filed in the Federal district court challenging this declaration of an 
emergency under these circumstances. This gets to my basic problem, 
which is that this is not a very productive way to actually accomplish 
the goal if you know that what you are going to do is going to be tied 
up in litigation for the next 6 months or a year.
  But I have to ask the question: Under these broad grants of authority 
that Congress has previously given to a President or any President, 
what would stop a future President from declaring a national emergency 
over climate change or global warming? I am concerned that we are going 
to see these emergency powers used as a failsafe for policies favored 
by the Executive--one who takes it further for a purely ideological 
goal that in no way comes close to a crisis or emergency.
  Yes, I also worry that some of the money that will be accessed under 
this declaration of national emergency is for military construction 
projects, many of which are located at military bases in Texas. This is 
not a case of, do we need border security, or do we need to provide the 
housing and infrastructure for our military--we need both. So the 
President and Congress should not try to rob from Peter to pay Paul.
  I, along with my colleagues, have fought for these appropriations for 
military construction because they are important to the ability to 
recruit and retain men and women who volunteer for the military, and 
their families. They are important for our national security. I have 
and I will continue to push the administration to not let these 
critical projects get caught in the crosshairs in this dispute over 
adequate border security funds.
  Third and finally, I suggest that Congress needs to look in the 
mirror when it comes to the situation in which we find ourselves. The 
only reason President Trump had the authority to do what he did is 
because Congress delegated it to him, just like it is delegated to 
future Presidents and has been to past Presidents under these 123 
separate grants of authority. I worry that Congress has delegated too 
much of its power to the executive branch.
  In the 1944 case Korematsu v. United States, the Supreme Court upheld 
the internment of Japanese Americans--something unimaginable today, but 
in 1944, during the throes of the Second World War, it was something 
that was the official policy of the government. It went all the way to 
the Supreme Court of the United States. Justice Robert Jackson--one of 
the three dissenters--said that each emergency power ``lies about like 
a loaded weapon, ready for the hand of any authority that can bring 
forward a plausible claim of an urgent need.'' I agree with Justice 
Jackson's warning.
  If our Democratic colleagues are concerned about how this President 
or any other President will utilize the powers this body has given him, 
perhaps we should reexamine those powers rather than fault the 
President for using authorities Congress has already given to him.
  Despite these concerns, I believe the President is operating within 
the authority Congress has delegated to him. It is strictly because of 
the dysfunction in the Congress and our inability to work together to 
come up with solutions when it comes to border security or immigration 
that the President is desperate to find access to the funds he believes 
are necessary for the national security of our country.
  As I said, I think this situation reflects more on the dysfunction in 
Washington these days and the inability of Congress to work with the 
President to find bipartisan, commonsense solutions. I think we ought 
to return to those bipartisan, commonsense solutions rather than engage 
in some of the drama associated with this particular declaration under 
these sets of circumstances.
  Madam President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Ms. Ernst). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. ALEXANDER. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.