[Congressional Record Volume 165, Number 39 (Tuesday, March 5, 2019)]
[Senate]
[Pages S1648-S1650]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Declaration of National Emergency
Ms. MURKOWSKI. Madam President, last week, I announced my intention
to vote in favor of H.J. Res. 46. This is a resolution expressing
disapproval of the President's February 15 proclamation of a national
emergency. At that same time, I joined with my colleague, the Senator
from New Mexico, along with the Senator from Maine, Ms. Collins, and
the Senator from New Hampshire, Mrs. Shaheen, in the introduction of
the Senate companion, S.J. Res. 10.
I want to take just a few moments this afternoon and speak to my
rationale not only for my statements but for my support for terminating
the national emergency. It is, certainly, not based on disagreement
over the issue of border security on our southern border. I recognize
full well, along with, I believe, all of our colleagues here, the
situation on the border and the humanitarian issues that face us. The
issue that faces us with the level of those coming across our borders
is not a sustainable situation, and, certainly, the influx of drugs
that we are seeing in this community must be addressed.
Rather, my concern is, really, about the institution of the Congress
and the constitutional balance of powers that, I think, are just
fundamental to our democracy. In my view, it really comes down to
article I of the Constitution. Article I, section 7, clause 8 reads:
``No
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Money shall be drawn from the Treasury, but in consequence of
Appropriation.''
This provision and the necessary and proper clause of article I,
section 8, clause 18 and the taxing and spending clauses--article VIII,
clause 1--are just generally regarded as the basis for the notion that
the power to spend resides in the Congress. We say it around here--that
the power of the purse rests with the Congress.
Of all of these three clauses that I have just articulated, the
admonition that no money shall be drawn from the Treasury but in
consequence of appropriation is probably the clearest expression of the
Framers' view that the executive has no power to spend money in a
manner that is inconsistent with the intentions of the Congress.
Justice Story, in his 1883 Commentaries on the Constitution,
characterized that clause as an important means of self-protection for
the legislative department.
He went on to write:
The [legislature] has, and must have, a controlling
influence over the executive power, since it holds at its
command all of the resources by which the executive could
make himself formidable. It possesses the power of the purse
of the nation and the property of the people.
Again, he just very clearly articulates where these lanes of
authority--these lanes of jurisdiction--reside.
This past weekend, on Sunday, a local newspaper, the Fairbanks Daily
News-Miner, published an editorial. In that editorial, it was argued
that our colleagues here in the Senate should vote for the resolution
of disapproval. The editorial is entitled: ``A dangerous course:
Congress shouldn't cede power to president in border funding dispute.''
Madam President, I ask unanimous consent that the editorial be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Fairbanks Daily News-Miner, March 3, 2019]
A Dangerous Course: Congress Shouldn't Cede Power to President in
Border Funding Dispute
(Editorial Board)
Two reasons for alarm exist regarding President Donald
Trump's declaration of a national emergency at the U.S.-
Mexico border so that he can reallocate funds approved by
Congress for other purposes.
First is the problem of potential precedent. Is building a
wall at the border the type of situation envisioned by
Congress when it approved the National Emergencies Act in
1976? Or is the president simply declaring a national
emergency as a way to overcome a political dispute over a
funding allocation?
If it is political dispute and is upheld by the U.S.
Supreme Court, where the issue is almost certainly headed,
how will Republicans in Congress who support the president's
emergency declaration react when--not if--a Democrat occupies
the White House and uses the same national emergency logic to
force actions on climate change that Republicans find
objectionable?
That is one concern.
Republican Sen. Lisa Murkowski earlier indicated she would
support a disapproval resolution and Thursday joined fellow
GOP Sen. Susan Collins, of Maine, and two Democratic senators
to introduce the resolution in the Senate. Sen. Dan Sullivan,
Alaska's other Republican senator, has not stated publicly
how he will vote.
The Senate resolution is similar to one approved by the
House on Tuesday. Rep. Don Young voted against the
resolution. The National Emergencies Act requires that the
Senate vote on the House resolution; a vote is expected
within the next two weeks.
There is also an issue that is greater than that of border
security. It is the issue of guarding against encroachment by
one branch of government on the power of another.
Members of Congress should be asked these questions: Do you
believe the president is properly exercising authority
granted by Congress under the National Emergencies Act? Or do
you think his emergency declaration is an unacceptable
overreach by the executive branch?
Encroachment by one branch on another and the consolidating
of power in one branch worried some of the Founders as they
crafted our system of independent yet interlocking government
branches. The Federalist Papers, the series of 85 writings
that aimed to convince the public to support ratification of
the Constitution, contain references to that concern.
James Madison wrote in Federalist No. 48, published Feb. 1,
1788, that ``It will not be denied, that power is of an
encroaching nature, and that it ought to be effectually
restrained from passing the limits assigned to it. After
discriminating, therefore, in theory, the several classes of
power, as they may in their nature be legislative, executive,
or judiciary, the next and most difficult task is to provide
some practical security for each, against the invasion of the
others.''
``Will it be sufficient to mark, with precision, the
boundaries of these departments, in the constitution of the
government, and to trust to these parchment barriers against
the encroaching spirit of power?''
The concern appears again in Federalist No. 51, written by
Madison and Alexander Hamilton and published Feb. 8, 1788:
``The great security against a gradual concentration of the
several powers in the same department, consists in giving to
those who administer each department the necessary
constitutional means and personal motives to resist
encroachments of the others. . . . Ambition must be made to
counteract ambition.''
Congress, as a co-equal branch of government, should stand
up for itself.
President Trump has said he will veto the resolution if it
comes to his desk. And at this stage it appears unlikely that
there are enough votes in Congress to override that veto.
What each member of Congress says and does in this funding
dispute will reveal clearly how they view the law and the
relationship between the legislative and executive branches.
Ms. MURKOWSKI. Madam President, in support of the argument outlined
in that headline, the News-Miner's editorial board wrote the following:
Encroachment by one branch on another and the consolidating
of power in one branch worried some of the Founders as they
crafted our system of independent yet interlocking government
branches. The Federalist Papers . . . contain references to
that concern.
The editorial board goes on to refer to Federalist No. 51, which
reads:
The great security against a gradual concentration of the
several powers in the same department, consists in giving to
those who administer each department the necessary
constitutional means and personal motives to resist
encroachments of others. . . . Ambition must be made to
counteract ambition.
When you translate that into just plain old English, it basically
means Congress is a coequal branch of government, and, as such,
Congress should stand up for itself. That really is the reason--the
root--of why I have announced my support for this resolution of
disapproval. I think it is fair to say that we all have disagreements
around here about all sorts of things that are part of the
appropriations process, and, certainly, the issue of border funding or
just border security is no exception.
Even if the fiscal year 2019 appropriations process had run smoothly,
which it certainly did not, think about how we got to where we are
right now. The President submitted his budget last year. He requested
money for barriers on the border and other aspects of border security.
The request went through the appropriations process. I serve on that
subcommittee. In the Senate subcommittee, we advanced out of the
committee the President's request. After 3 months of continuing
resolutions, we ended up in a stalemate with the other body last year,
calendar year 2018. In January, control of the other body changed. The
stalemate continued until the lengthy negotiations concluded, which
allowed both bodies to pass and for the President to agree to sign an
appropriations package just several weeks ago in February.
Again, that appropriations package was, I think it is probably fair
to say, the result of a great deal of back-and-forth between the House,
the Senate, and the White House, but it was clearly something that did
help to advance the priorities that the President had outlined with
regard to the southern border.
I am quoting from a White House fact sheet here, which reads:
``Secured a number of significant legislative victories that further
the President's effort to secure the Southern Border and protect our
country.'' Chief among those victories was ``the bill provides $1.375
billion for approximately 55 miles of border barrier in highly
dangerous and drug smuggling areas in the Rio Grande Valley, where it
is desperately needed.''
So we are where we were on February 15 when the administration
recognized that significant gains had been made, but I think we all
know that the President believes very, very strongly that there is more
that should be done, that must be done, and that will be done to
address that.
Clearly, there was a disagreement between the Congress and the
President about how much could be spent on border security in 2019. I
think, in fairness, sticking up for Congress's power of the purse
doesn't necessarily mean that it comes at the expense of border
security. I believe very strongly we can
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address the President's concerns--the very, very real and legitimate
concerns that need to be addressed--but that we don't have to do it at
the expense of ceding that authority, of ceding that power of the
purse, of ceding that article I power that we have here.
There are ways that the President can advance his issues, and he has
done so. He, certainly, has the prerogative to ask for supplemental
appropriations. He has identified additional funding that is outside of
the national emergency designation, or declaration, if you will.
He has identified additional funding--close to $3 billion--from other
statutory authorities. These are the authorities under 10 U.S.C.
284(b), which is the counterdrug account, counterdrug funds. That will
require a level of reprogramming through the appropriating committees,
but that can be done outside of the national emergency. The other
source of funding is the Treasury Forfeiture Fund through the Secretary
of the Treasury under 31 U.S.C. 9705. So I think it is clear that there
are avenues to enhance the funding opportunities to address the
situation at the border.
The concern that many of us have raised is the designation in this
third account--the designation of a national emergency--that would tap
into funds that have already been designated for military construction
projects, important construction projects that have been designated
around the country. We certainly have many in my State of Alaska. We
haven't seen the list that would perhaps outline with greater
articulation where the Secretary of Defense might think it would be
appropriate to delay some of these projects. But, again, I would just
remind--these are projects that have perhaps already been delayed
because of the Budget Control Act that has been in place for several
years, so I think further delay for many of these projects would cause
most concern.
So I come to the National Emergencies Act. I think there is a
recognition that when this was adopted, was put into law, it was
initially intended to rein in the President's ability to declare
emergencies. But at the same time it authorized the President to
declare national emergencies, it didn't ever clearly define the extent
of that power. So that is an issue that I think we are dealing with
right now. Implicit in this grant is the trust that the power will be
used sparingly. I think that if you look back over the history, the 59
previous times these powers have been utilized, you can say they have
been used sparingly. But also explicit is the authority for the
Congress to terminate an emergency if the Congress believes it was
imprudently declared, and that is basically where we are today.
Because Congress did not explicitly constrain the President's power
to declare an emergency, many of the constitutional scholars--those who
are trying to game this out--believe the President will ultimately
prevail in the litigation that we are entirely certain will be seen in
the courts.
The question for us to consider in this body is not whether the
President could have declared an emergency but whether he should have
and, again, the question relating to the redirection of military
construction funds from our bases around the country to the southern
border. These are the questions we are currently debating. But in the
final analysis, I look at the issue we have in front of us, and this is
really a very challenging place for us as a Congress, to be debating
the constitutional powers of the Congress against a legislative
agenda--a strong legislative agenda and an important one that the
President has. But I have come to be quite concerned about where we are
when it comes to precedent and the precedent that we may see unleashed.
In many ways, I view this as an expansion of Executive powers by
legislative acquiescence.
If we fail to weigh in, if we fail to acknowledge that this
designation has gone beyond that which has previously been considered,
if we go around, effectively, the will of Congress, where will it take
us next? I think we need to think about that because it is so easy to
get focused on where we are in the here and now and the situation we
are dealing with today, but when we are pushing out those lanes of
congressional authority, I think we need to be thinking clearly about
what that may mean for future administrations and for future
Congresses.
As the chairman of the Energy and Natural Resources Committee, my
focus is very often on the energy sector, on the energy space, and so I
have asked, if we were in a situation with a new President, what could
be invoked if a new President should decide to exercise his or her
emergency authorities as they relate to energy? It is entirely possible
that a future President could declare a national emergency related to
global climate change, speaking to a humanitarian crisis and what it
might mean for national security. In fact, one of our colleagues from
Massachusetts has already said as much--that a national emergency could
be declared as relates to global climate change.
You have to ask the question. What would stop a future President from
declaring an emergency and then directing the military to spend
billions of dollars on renewable projects or refugee assistance? What
is to stop a future President from targeting the Nation's oil and gas
supply by cutting off exports and shutting down production on the Outer
Continental Shelf?
I think we would all say: Well, we don't need to worry about that
happening with our current President; he is not going to do any of
those things. But the authorities technically would exist for all of
them, and so it is concerning. It is concerning to me that a future
President could use that to drive their agenda--again, without the
consent of the Congress.
So I repeat--I am concerned that, as a Congress, as a legislative
body, we would stand back and we would acquiesce in the use of a
national emergency to resolve a disagreement between the executive and
the legislative branches over the appropriate level of funding for a
situation that likely exceeds what can be spent in our current fiscal
year.
I know there will be continued discussion not only here in the
Senate, in the Congress, but certainly around the country about these
matters. I know some of my colleagues are interested in revisiting the
scope of the National Emergencies Act, and that is clearly worth
considering. But I firmly believe that one can be strongly for border
security and at the same time question whether the administration has
overreached in using the National Emergencies Act in the way that it
has, and I find myself in that camp. That is why it is with great
resolve that I support the adoption of the resolutions of disapproval.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. VAN HOLLEN. Madam President, I ask unanimous consent that the
order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.