[Congressional Record Volume 165, Number 38 (Monday, March 4, 2019)]
[Senate]
[Pages S1613-S1614]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                   Declaration of National Emergency

  Mr. ALEXANDER. Madam President, on Thursday, I suggested that 
President Trump has sufficient congressional authority to spend the 
$5.7 billion he asked for in his January 6 letter to the Senate 
Appropriations Committee chairman to build 234 miles of border wall 
without resort to a dangerous national emergency precedent that could 
upset the constitutional separation of powers that goes to the heart of 
our freedom.
  I believe the President has clear authority to transfer up to $4 
billion among accounts within the over $600 billion defense budget in 
order to counter drug activities and to block drug smuggling corridors 
across international borders.
  On February 15, the President said that he plans to use $2.5 billion 
of this same transfer authority to build the 234 miles of wall along 
the southern border that he asked for in his January 6 letter. If he 
increases the transfer from $2.5 billion to $3.7 billion, along with 
the other existing funding authority that he has, he will have the full 
$5.7 billion that he said he needed.
  William E. Nelson, of New York University School of Law--one of 
America's foremost scholars of legal history--wrote an excellent op-ed 
last week that explained why it is so important that the President and 
the Congress should not, in Professor Nelson's words, ``invert the 
entire constitutional order where Congress appropriates and the 
President spends.''
  I ask unanimous consent that Professor Nelson's article be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

The Conversation: Trump vs. Congress: The Emergency Declaration Should 
                        Not Be Resolved in Court

  (Oped by: William E. Nelson, New York University February 28, 2019)

       President Donald Trump's emergency declaration to build a 
     border wall has provoked a constitutional confrontation with 
     Congress.
       Here is the background for understanding what's at stake--
     beginning more than two centuries ago.
       A major problem for the framers at the Constitutional 
     Convention in 1787 was how to create a presidency powerful 
     enough to protect the nation, yet constrained enough to 
     prevent a president from becoming a dictator.
       Ultimately, the president was given power to enforce the 
     law, conduct foreign relations and command the armed forces. 
     Congress retained most other key powers, including the power 
     of the purse and the power to declare war.
       The framers knew they could not predict all that the future 
     would bring. So they left the precise boundaries between 
     presidential and congressional power unclear. This 
     imprecision in our checks and balances has served the nation 
     well for 230 years because it provides the flexibility to 
     govern while preventing tyranny.
       As scholars of constitutional law and history, we believe 
     that President Trump's assertion of a national emergency to 
     build a wall along the Mexican border and the lawsuits filed 
     in response together threaten the very imprecision that has 
     helped maintain constitutional checks and balances for more 
     than two centuries.

[[Page S1614]]

       To best maintain that balance, this confrontation should be 
     resolved in the political realm, not in the courts.


                         The National Emergency

       But the lawsuits over the emergency declaration will 
     probably reach the Supreme Court, and the court might well 
     hold Trump's emergency declaration unconstitutional.
       That would set a precedent that would unduly limit national 
     emergency power that some future president may need.
       Alternatively, the court could decide the lawsuits in 
     Trump's favor. That would invert the entire constitutional 
     order, where Congress appropriates and the president spends. 
     It would undercut the checks and balances provided by the 
     framers and lead to an incredibly powerful presidency.
       Either result the court reaches would set a bad precedent.
       Congress can avert this problem.
       The 1976 National Emergencies Act gives Congress power to 
     invalidate a president's declaration of emergency by a 
     resolution passed by simple majorities of both houses.
       The House voted 245-182 on Tuesday to overturn President 
     Trump's national emergency declaration. Democrats were joined 
     by more than a dozen Republicans in the vote. The Senate will 
     now take up the measure, though a vote has not been 
     scheduled.
       White House adviser Stephen Miller has already suggested 
     that Trump would veto any such resolution.
       ``He's going to protect his national emergency declaration. 
     Guaranteed,'' Miller said on Fox News. Both the House and the 
     Senate would then need two-thirds majorities to override his 
     veto.
       We believe that for Congress to protect the constitutional 
     order, its members must muster the necessary two-thirds 
     majority.


                              To the court

       If Congress does not override the president's veto, the 
     lawsuits will probably go to the Supreme Court. The court's 
     decision has strong potential to do harm to the historic 
     constitutional balance.
       That balance was upheld by the Supreme Court in a crucial 
     decision more than 50 years ago.
       On April 9, 1952, President Truman declared a national 
     emergency. In the midst of the Korean War, he seized the 
     country's steel mills on the eve of a nationwide strike 
     because steel was necessary to make weapons. weapons. The 
     steel companies immediately brought a lawsuit against the 
     seizure in federal court.
       Recognizing the importance of the issue, the Supreme Court 
     heard arguments on May 12, and handed down its decision on 
     June 2.
       The court, in Youngstown Company v. Sawyer, rejected the 
     president's claim by a 6-3 majority.
       Justice Robert Jackson wrote an opinion proclaiming a 
     general approach to the balance of powers between Congress 
     and the president, rather than a fixed rule.
       Jackson declared that ``when the President acts pursuant to 
     an express or implied authorization of Congress, his 
     authority is at its maximum.''
       The president's power, Jackson wrote, is in a ``zone of 
     twilight'' when Congress has not spoken. When ``the President 
     takes measures incompatible with the expressed or implied 
     will of Congress, his power is at its lowest ebb.''


                       President Against Congress

       President Trump is acting contrary to Congress's will by 
     appropriating money Congress has refused to appropriate. He 
     signed a carefully constructed compromise budget bill passed 
     by more than veto-proof two-thirds majorities in both houses. 
     He accepted the U.S. $1.375 billion that the bill gave him 
     for a border wall.
       He then broke the deal by declaring a national emergency to 
     allocate an additional $6.7 billion to pay for border wall 
     construction.
       In two important cases, the Supreme Court has broadly 
     prohibited Congress from giving any of its appropriations 
     authority or responsibility to the president--even 
     voluntarily.
       Congress's adoption of a joint resolution seeking to 
     invalidate Trump's emergency declaration--an explicit 
     statement of congressional will--would provide conclusive 
     evidence that would only strengthen the argument that the 
     president is acting contrary to Congress's will.


                 Preserving the Constitutional Balance

       If the case gets to the Supreme Court, the president's 
     lawyers might argue that for Congress to decisively oppose an 
     emergency declaration of the president, lawmakers must 
     override his veto by a two-thirds vote.
       Imposing such a veto override requirement, however, would 
     eliminate the court's role. That's because a presidential 
     declaration of emergency is immediately invalid if Congress 
     overrides a presidential veto.
       Two-thirds overrides are historically unlikely by Congress. 
     And requiring a two-thirds vote would give a president who 
     declares a national emergency virtually unlimited power to 
     appropriate money to his or her heart's content--perhaps 
     hundreds of billions of dollars to address, for example, 
     climate change by subsidizing construction of wind farms.
       Requiring Congress to override a presidential veto that 
     protects a presidential appropriation would turn the 
     appropriations power and the Constitution's checks and 
     balances inside out.
       Congress has already spoken through passing the spending 
     bill and will be considering a resolution to invalidate the 
     president's declaration of emergency.
       Such a resolution, even if vetoed by the president, places 
     President Trump's declaration in Justice Jackson's category 
     where presidential power ``is at its lowest ebb.''
       It also preserves the historic flexibility by allowing the 
     court's decision to give deference to the votes of Congress 
     in cases of claimed emergencies.
       This story has been updated to reflect the House vote on 
     Feb. 26, 2019, on the resolution to overturn President 
     Trump's national emergency declaration.

  Mr. ALEXANDER. I yield the floor.
  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. WICKER. Madam President, what is the pending business?
  The PRESIDING OFFICER. The pending business is the Rushing 
nomination.
  Mr. WICKER. Madam President, I ask unanimous consent to speak as in 
morning business for no more than 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.