[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

[[Page S1649]]

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

[[Page S1650]]

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.