[Congressional Record Volume 165, Number 46 (Thursday, March 14, 2019)]
[Senate]
[Pages S1857-S1882]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
RELATING TO A NATIONAL EMERGENCY DECLARED BY THE PRESIDENT ON FEBRUARY
15, 2019
The PRESIDING OFFICER. Under the previous order, the Committee on
Armed Services is discharged from further consideration of H.J. Res.
46, and the Senate will proceed to its immediate consideration.
The clerk will report the joint resolution by title.
The bill clerk read as follows:
A joint resolution (H.J. Res. 46) relating to a national
emergency declared by the President on February 15, 2019.
There being no objection, the committee was discharged, and the
Senate proceeded to consider the joint resolution.
Mr. McCONNELL. 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. SCHUMER. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Recognition of the Minority Leader
The PRESIDING OFFICER. The Democratic leader is recognized.
Tribute to ``Stew''
Mr. SCHUMER. Madam President, I thank my colleague and friend from
Tennessee for deferring.
First, on Donald Stewart, I know Leader McConnell talked about him.
Everyone is going to miss him here in the Senate. He was truly somebody
whom everyone liked. He always had a great sense of humor and a big
smile. He served his boss, Mitch McConnell, extremely well, but he
never let that get in the way of being friendly and working with the
other side. He is somebody we will all miss. I enjoyed my interactions
with him a great deal. I think that is probably true of just about
every Member here.
We wish Stew the best and thank him for serving this body so long and
so well.
H.J. Res. 46
Today, Madam President, the Senate will vote on the resolution to
terminate the President's declaration of a national emergency. This is
not a normal vote. What we are doing here today--this is not a normal
day. It is not your typical vote on an appropriations or authorization
bill. It doesn't concern a nomination or an appointment. This will be a
vote about the very nature of our Constitution, the separation of
powers, and how this government functions henceforth.
The Framers gave Congress the power of the purse in article I of the
Constitution. It is probably our greatest power. Now the President is
claiming that power for himself under a guise of an emergency
declaration to get around a Congress that repeatedly would not
authorize his demand for a border wall.
The President has not justified the emergency declaration. You would
think in a moment like this, when there is not a war, when there is not
an immediate disease, or when there is not a disaster--that is when we
had other declarations. They don't need an elaboration, but this one
would. But the President hasn't done that. He simply said he ``didn't
need to do this.'' That is amazing, folks, my colleagues. The President
said he didn't need to do this, and yet he is declaring an emergency.
It is a direct contradiction of his own words.
Everyone here knows the truth. Democrats and Republicans know the sad
truth. The President did not declare an emergency because there is one;
he declared an emergency because he lost in Congress and wants to get
around it. He is obsessed with showing strength. He couldn't just
abandon his pursuit of the border wall, so he had to trample on the
Constitution to continue his fight. That is not how this democracy is
supposed to function. That is not how this democracy has functioned. I
have never seen it, where, out of anger and out of a desire to win the
fight regardless of the consequences, a President would do this.
The President has not laid out where he plans to divert funds from,
though we know it is going to be from our military--from the men and
women serving us and from the things they need.
Senators who vote against this resolution this afternoon may be
voting to gut funding for a military installation in their State or for
a cut to military pay and military pensions. How could they do that?
Most importantly, President Trump has shown zero understanding of
what his emergency portends for the separation of powers in our
democracy. The President seems to regard the government, not just the
Justice Department, as his own personal tool to do whatever he wants,
whether it is in the private sector or the public sector. We have never
had a President like this.
We have had lots of Presidents with lots of foibles, but none of them
seem to equate their own ego with the entire functioning of the
government of the United States, except this one.
[[Page S1858]]
We can't succumb to that. It is our job here, in Congress, to limit
executive overreach, to defend our core powers, to prevent a
President--any President--from ignoring the will of Congress every time
it fails to align with the will of the President. That is what the
balance of powers is. That is what checks and balances is. That is what
every one of us learned in second grade civics class.
All that teaching in the second grade civics class seems to be lost
on so many of my Republican colleagues in blind obeisance to this
President, no matter what the consequences.
This is not an issue of the wall. It goes way beyond that. We have
had our fights and disputes on the wall for several years here. However
you feel about our policy on the southern border and however you feel
about the President, Senators should vote yes on the resolution to
terminate the emergency declaration.
This resolution is about more than this President. It is about the
Presidency now and on into the future.
It should not be difficult for any of my Republican colleagues to
take this vote. Conservative principles would demand it, and some of
the true conservatives, like Mr. Lee, yesterday, understood that logic.
Conservatives have always feared an agglomeration of power in any
branch of government, but particularly in the executive branch. The
conservative movement has been designed to reduce the powers of the
Federal Government. That is why they are for lowering taxes so much.
All of a sudden, again, because President Trump simply wants it, they
say: Let's abandon those principles and vote to change, fundamentally,
the way the balance of power works--shame.
If conservatism today is to mean anything, self-branded conservatives
should vote to terminate the resolution. Deep-seated principles like
that shouldn't take a back seat to the politics of the moment. They
should not be abandoned just because the President shares the same
party.
Now, let me speak from the heart to my Republican colleagues. I know
that President Trump is extremely popular among Republicans for many
reasons. I know he commands the vast majority of the Republican Party,
and I know that the President never shies away from threatening,
bullying, or publicly castigating members of his own party if they
refuse to do what he wants.
So, I realize this. It is a much more difficult vote for my
colleagues on the other side of the aisle to take than for those of us
who are Democrats. I would say to them, and I would say to every
Republican: There are times when loyalty to America, to our
Constitution, to our principles, and to what has made this country
great should lead Members to rise above and rise to the occasion.
I hope and I pray that this moment is one of those times when Members
choose country over party and when Members rise above politics for the
sake of fidelity to our constitutional principles and to this great
United States of America.
In conclusion, on this issue, this is not an everyday moment. This is
not just about going along with this President or that one. This is a
red-letter day in the history of how the U.S. Government functions. The
judgment of our Founding Fathers and the judgment of history weighs
upon this vote.
Tariffs
Madam President, the trade negotiations with China are moving
forward, and I continue to have concerns that President Trump will
accept a weak deal for the sake of a headline. Apparently, I am not
alone. President Trump's former top economic adviser, Gary Cohn, told a
podcast that the President is ``desperate'' to reach a trade deal. He
also expressed deep skepticism that the administration would be able to
stop the Chinese from stealing intellectual property and hold the
Chinese accountable.
I hope Gary Cohn is wrong. The President, to his credit, was not
desperate for a deal in North Korea and stood up to Kim Jong Un and
looked strong for that. I hope he realizes that, as he negotiates with
someone with even more consequences at stake for the long run of
America--President Xi--and with a country that can do far more harm to
our country, ultimately, in the long run.
Ambassador Lighthizer has said that there are still major issues left
to be resolved. If that is the case, President Trump should not be
pressing for a quick solution. The Chinese are more desperate for a
solution than we are, although, obviously, some harm has been created
to bring the Chinese to the table with tariffs.
The Chinese are desperate, and it is like they are ahead in the
seventh inning, and then you say: I quit the ball game; I lose.
Don't do that, Mr. President. The tariffs you have imposed, at some
political cost, have brought China to the table and given us the first
opportunity in decades--in decades--to make the Chinese reform so they
don't take total advantage of American workers and know-how. Soybean
purchases and promises to import more American goods are not sufficient
if we don't win concrete concessions on major issues.
If President Trump caves to China for the sake of soybean purchases,
he would be trading America's future, literally, for a hill of beans.
We want to help the soybean farmers. We want to help everybody else,
but not at the expense of the future viability of jobs and wealth in
America.
My message to President Trump is the same one I mentioned to him and
I gave to him before he met with Kim Jong Un: Don't back down.
The President should be proud that he stood up to North Korea and
walked away. He will be proud if he does the same with China, unless
President Xi makes enduring, verifiable reforms of China's economic and
trade policies, because the odds are high that if the President walks
away from a weak deal, he will be able to get a much better deal down
the road.
I yield the floor.
The PRESIDING OFFICER. The Senator from Tennessee.
H.J. Res. 46
Mr. ALEXANDER. Madam President, Tennesseans have asked me: Is there
really a crisis on the southern border? Do you support President
Trump's border wall?
And my answer to both questions is yes, I do.
I have urged the President to build the 234 miles of border wall that
he asked for in his January 6 letter to the Senate and to do that in
the fastest possible way, with a minimum delay and legal challenge, by
using the $5.7 billion already approved by Congress.
But the President's emergency declaration to take an additional $3.6
billion that Congress has appropriated for military hospitals, for
barracks, and for schools--including one in Fort Campbell--is
inconsistent with the U.S. Constitution that I took an oath to support
and to defend.
Never before has a President asked for funding, the Congress has not
provided it, and then the President has used the National Emergencies
Act of 1976 to spend the money anyway. The problem with this is that
after a Revolutionary War against a King, our Nation's Founders gave to
Congress--a Congress elected by the people--the power to approve all
spending so that the President would not have too much power. This
check on the executive is a source of our freedom.
In addition, this declaration is a dangerous precedent. Already,
Democrat Presidential candidates are saying they would declare
emergencies to tear down the existing border wall, to take away guns,
to stop oil exports, to shut down offshore drilling, and for other
leftwing enterprises--all without the approval of Congress.
I believe the crisis on our southern border is real. U.S. Customs and
Border Patrol arrested more than 66,000 illegal aliens in February of
2019--the highest total in a single month since March 2009. In the last
2 years alone, U.S. Immigration and Customs Enforcement officers have
arrested 266,000 illegal aliens in the United States with criminal
records. Each week, approximately 300 Americans die from heroin
overdoses, of which nearly 90 percent come across the southern border.
During the last 25 years, Congress approved and President Obama,
President Clinton, President George W. Bush, and President George H. W.
Bush built 654 miles of barrier along the 1,954-mile southern border.
In 2013, the comprehensive immigration bill that received 68 Senate
votes, including mine, included $40 billion for border security,
including physical barrier, and enforcement. Last year, I voted with
nearly
[[Page S1859]]
every Democrat for a bill that included $25 billion for border
security, including physical barrier.
So one might ask: Why is President Trump the only President not
allowed to build more wall on the southern border?
But in this case, as the Wall Street Journal said on March 12, ``The
President doesn't need to invoke a national emergency to build his wall
along the southern border.'' He has the money immediately available in
other accounts already approved by Congress. Any appreciation for our
structure of government means that no President should be able to use
the National Emergencies Act to spend money that Congress refuses to
provide.
The late Justice Antonin Scalia, who is revered by constitutional
conservatives, put it this way for us. Justice Scalia said:
``Every tin horn dictator in the world today, every
President for life has a Bill of Rights. That's not what
makes us free. What has made us free is our Constitution.
Think of the word ``constitution,'' it means structure.
That's why America's framers debated not the Bill of Rights,
but rather the structure of the federal government.''
Justice Scalia wrote:
The genius of the American constitutional system is the
dispersal of power. Once power is centralized in one person,
or one part of government, a Bill of Rights is just words on
paper.
That was Justice Scalia.
I fault Democrats for not supporting President Trump's reasonable
request for more wall on the border after 25 years of approving
physical barriers and border wall for four other Presidents. That is
not an excuse to ignore the constitutional separation of powers,
especially when the faster way to build the 234 more miles of border
wall that the President has asked for is to use $5.7 billion already
approved by Congress.
I ask unanimous consent that the editorial from the Wall Street
Journal dated March 12, 2019, be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Wall Street Journal, Mar. 12, 2019]
Trump's Emergency Exit
how he can declare victory on wall money without losing a vote
(By The Editorial Board)
The Senate will vote on a resolution to override President
Trump's emergency declaration as early as Thursday, and
rarely has there been a clearer case of needless self-harm.
Mr. Trump should listen to the Senate Republicans offering
him a safe emergency exit.
On Tuesday Vice President Mike Pence met with several GOP
Senators ahead of a vote on the override resolution that
passed the House with ease. As many as 10 to 15 GOP Senators
may vote to override.
Republican Senators up for re-election in tough states are
in an impossible position. Susan Collins of Maine and Thom
Tillis of North Carolina are both up in 2020, and they're
voting to rebuke the President. Martha McSally has to fight
for her seat in Arizona in 2020, and to win she'll need a
coalition of Trump voters and the President's skeptics. No
matter how she votes she isolates potential supporters. Ditto
for Cory Gardner of Colorado.
And for what? The President doesn't need to invoke a
national emergency to build his wall along the southern
border. Sen. Lamar Alexander of Tennessee has pointed out
that the White House already has funds at its disposal
without declaring an emergency.
Consider: The President wants $5.7 billion for the wall.
Congress provided $1.375 billion in appropriations. The
President plans to tap $601 million from a forfeiture fund at
the Treasury Department that can be used for general law
enforcement purposes. Mr. Trump also plans to use $2.5
billion from Defense Department accounts that deal with drug
smuggling, though Sen. Alexander notes that the law allows
him to tap up to $4 billion.
In other words, if the President moved $3.7 from the
Pentagon drug account, he'd reach his $5.7 billion goal
without needing to pilfer $3.6 billion from military
construction. The White House noted this in a fact sheet last
month but declared an emergency anyway. The irony is that the
President can't possibly spend all this money on wall
construction before the fall's budget negotiations for fiscal
2020, when he can work on winning more funding.
Mr. Trump could rescind the order and say he'll spend the
money available under the law first, and reconsider if facts
warrant. This would keep the money out of the courts. The
President would also be better positioned to win the 2020
defense spending he wants if he isn't raiding the military to
pay for the wall. In his budget proposal this week, Mr. Trump
asked Congress to backfill the money he is taking from
military construction. House Democrats have no incentive to
cooperate.
The alternative is a divisive vote that Mr. Trump is sure
to lose and a bipartisan resolution he'll have to veto. And
that's for starters. The National Emergencies Act allows a
vote in Congress every six months until an emergency is
terminated. Democrats have found a gift that will keep on
giving.
Some Republicans are proposing fixes to the National
Emergencies Act, which would be welcome. A proposal from Mike
Lee of Utah would let the President declare an emergency as
he can now, but after 30 days Congress would have to vote to
continue it.
Republican Senators don't want a pointless showdown with
Mr. Trump, but they can't avoid one if the White House won't
change course. Mr. Trump should declare victory on wall
funding for this year and live to fight next year.
Mr. ALEXANDER. I yield the floor.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. UDALL. Thank you, Madam President, for the recognition. It is
great to be joined on the floor by Senator Collins, who is going to
speak after me to stand up for the Constitution, and I very much
appreciate Senator Lamar Alexander's comments also. He is a real
student of the Constitution, and I respect very much the conclusion he
has come up with here today.
When each Senator is sworn into office, we take a fundamental pledge
to support and defend the Constitution of the United States. That vow
that we support the Constitution dates back to the very first Congress
in 1789. Defending the Constitution is our first and foremost sacred
duty.
The Founders built a system of checks and balances into our
Constitution. They made sure that the three branches of government
exercised their own separate powers, and they made sure that no one
branch, no one person, could exercise too much power, especially over
the use of taxpayer money. The Founders gave to Congress the power of
the purse, one of our most fundamental powers. Article I, section 9 of
the Constitution could not be more clear: ``No money shall be drawn
from the Treasury, but in Consequence of Appropriations made by Law.''
Congress holds the power to spend taxpayer money, not the President.
It is our job to make sure that spending decisions have widespread
public support and are not the product of an extreme minority, much
less one man or one woman.
We all know that the President wants a wall. We just had a major
debate about border security funding. The President shut down the
government for 35 days because Congress refused his wall request.
Eventually he relented, but now he has declared an ``emergency'' to
simply try and take the money that he couldn't get from the
appropriations process. He said: ``I didn't need to do this.'' He
flaunted the fact that this is not a real emergency.
The President is testing the limits of Executive power. The questions
before the Senate today are these: Are we going to let this happen or
are we going to open Pandora's box? What about article I of the
Constitution? What about the 35-day government shutdown? What about
Presidential budget requests? What about the Appropriations Committee?
Are we really going to let a President raid taxpayer money after
Congress denies the request?
The opposition to this power grab is bipartisan, as it should be.
Among the American people the numbers are overwhelming. Almost 70
percent of the American people oppose the President's emergency
declaration to raid taxpayer money for the wall. That is almost 70
percent.
My fellow Senators, it is time for the Senate to do its job. It is
time for us to assert our authority over the purse. It is time for us
to honor our oath of office. Every Senator should vote yes on the
resolution to terminate the President's emergency declaration.
I want to thank my cosponsors in this effort. Earlier I mentioned
Senator Collins, who is on the floor with me and will speak after me--
Senator Murkowski, Senator Shaheen. Again, I know that Senator Collins
is on the floor to urge us to do the right thing, to stand up for
Congress's authority.
This vote is historic. The Constitution's principle of separation of
powers is at stake. If the Senate enables the President to hijack our
power to appropriate, history will not remember us fondly.
[[Page S1860]]
This vote is not about the wisdom of building a wall along the
border. This vote is not about party. This vote is about whether we
will let any President trample on the Constitution, whether we will sit
by and let the President take away our constitutional authority to
appropriate.
I rise today, hopeful that my Republican colleagues will speak up. In
addition to Senator Collins and Senator Murkowski, Senator Tillis
stated firmly in a recent opinion piece:
I support Trump's vision on border security. But I would
vote against the emergency.
Why does he say he would vote against the emergency declaration?
Because, he said, ``[a]s a U.S. Senator, I cannot justify providing the
executive with more ways to bypass Congress.''
Former Governor Kasich authored an opinion piece recently titled
``It's time for Republicans in Congress to put country over party.'' He
states:
Let's be clear. This vote is not about the situation at the
border; it's about an executive power grab and, above all,
congressional respect for the democratic process.
I couldn't agree more with Governor Kasich.
Madam President, I ask unanimous consent to have printed in the
Record the full pieces by Senator Tillis and Governor Kasich.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, Feb. 25, 2019]
I Support Trump's Vision on Border Security. But I Would Vote Against
the Emergency
(By Thom Tillis)
Thom Tillis, a Republican, is a U.S. senator from North
Carolina.
President Trump has few bigger allies than me when it comes
to supporting his vision of 21st-century border security,
encompassing a major investment in technology, personnel and
infrastructure, including new physical barriers where they
will be effective. It is a vision that will take many years
and tens of billions of dollars to fully realize, and the
president can count on me to help.
The president is rightfully frustrated with Congress's
inaction regarding the humanitarian and security crisis at
the nation's southern border. Even though Republicans and
Democrats spent the past several decades in the halls of
Congress and on the campaign trail promising the American
people that they would work to secure U.S. borders, some of
my colleagues seemingly made a politically calculated
decision to block the president's good-faith efforts to
finally get it done. They have regressed to the point where a
Democratic presidential contender such as Sen. Kirsten
Gillibrand (N.Y.) and a possible candidate, former
congressman Beto O'Rourke of Texas, are even entertaining the
possibility of tearing down existing physical barriers.
Although Trump certainly has legitimate grievances over
congressional Democrats' obstruction of border-security
funding, his national emergency declaration on Feb. 15 was
not the right answer.
From the perspective of the chief executive, I can
understand why the president would assert his powers with the
emergency declaration to implement his policy agenda. After
all, nearly every president in the modern era has similarly
pushed the boundaries of presidential power, many with the
helping hand of Congress.
In fact, if I were the leader of the Constitution's Article
II branch, I would probably declare an emergency and use all
the tools at my disposal as well. But I am not. I am a member
of the Senate, and I have grave concerns when our institution
looks the other way at the expense of weakening Congress's
power.
It is my responsibility to be a steward of the Article I
branch, to preserve the separation of powers and to curb the
kind of executive overreach that Congress has allowed to
fester for the better part of the past century. I stood by
that principle during the Obama administration, and I stand
by it now.
Conservatives rightfully cried foul when President Barack
Obama used executive action to completely bypass Congress and
unilaterally provide deferred action to undocumented adults
who had knowingly violated the nation's immigration laws.
Some prominent Republicans went so far as to proclaim that
Obama was acting more like an ``emperor'' or ``king'' than a
president.
There is no intellectual honesty in now turning around and
arguing that there's an imaginary asterisk attached to
executive overreach--that it's acceptable for my party but
not thy party.
Republicans need to realize that this will lead inevitably
to regret when a Democrat once again controls the White
House, cites the precedent set by Trump, and declares his or
her own national emergency to advance a policy that couldn't
gain congressional approval.
This isn't just conjecture. House Speaker Nancy Pelosi (D-
Calif.) and other prominent Democratic elected officials have
already hinted that emergency declarations will be part of
the playbook for the left, with Pelosi musing, ``just think
about what a president with different values can present to
the American people.''
Conservatives should take these warnings seriously. They
should be thinking about whether they would accept the
prospect of a President Bernie Sanders declaring a national
emergency to implement parts of the radical Green New Deal; a
President Elizabeth Warren declaring a national emergency to
shut down banks and take over the nation's financial
institutions; or a President Cory Booker declaring a national
emergency to restrict Second Amendment rights.
Those on the left and the right who are making Trump's
emergency declaration a simple political litmus test of
whether one supports or opposes the president and his
policies are missing the mark. This is about the separation
of powers and whether Congress will support or oppose a new
precedent of executive power that will have major
consequences.
As a U.S. senator, I cannot justify providing the executive
with more ways to bypass Congress. As a conservative, I
cannot endorse a precedent that I know future left-wing
presidents will exploit to advance radical policies that will
erode economic and individual freedoms.
These are the reasons I would vote in favor of the
resolution disapproving of the president's national-emergency
declaration, if and when it comes before the Senate.
____
[From CNN, Mar. 12, 2019]
John Kasich: It's Time for Republicans in Congress To Put Country Over
Party
(By John R. Kasich)
John R. Kasich is the former governor of Ohio, serving from
2011 to 2019. A Republican, he was previously a member of the
House of Representatives. He is the author of ``Two Paths:
America Divided or United.'' The opinions expressed in this
commentary are his. View more opinion articles on CNN.
During my 18 years as a member of Congress--not so long
ago--my colleagues and I didn't robotically toe the line with
the President. Republicans didn't vote in lockstep with
Republican presidents, not even Ronald Reagan. And Democrats
departed from their party's president when they thought it
was the right thing to do. We took party loyalty seriously,
but we gave even greater weight to principle.
In recent decades, of course, partisanship in the House and
Senate has become far more intense, and the nation is worse
as a result. But even now, in this hyper-partisan era, there
comes a time when our elected leaders must put country over
party.
One such moment: the ongoing debate over President Donald
Trump's national emergency declaration to fund construction
of a wall on the US-Mexico border. Sometime soon, Republican
senators will have the opportunity to demonstrate--as 13
Republicans did in the House--their love of country and their
commitment to constitutional values by voting for the
resolution to disapprove the President's emergency
declaration. Instead of acting like they're afraid of their
own shadows, Senate Republicans must use this vote to--at
long last--stand up and defend the Constitution.
the real national emergency is not at the border
Let's be clear. This vote is not about the situation at the
border; it's about an executive power grab and, above all,
congressional respect for the democratic process. Whatever
their views on the border situation--which I agree is
serious--Republicans should oppose the President's
declaration. Standing against the President on this issue is
important not just for today, but for our future.
For years, Republicans decried executive overreach by
President Barack Obama. If we are serious about our
constitutional values, we can't complain only about actions
by the other party. We have to apply consistent principles
whenever we have a president from our own party as well.
We should be especially concerned about President Trump's
effort to circumvent Congress simply by invoking the magic
word ``emergency.'' If presidents can do end runs around
Congress merely by claiming ``emergency,'' then there's
almost no limit to executive authority. This would create a
gravely dangerous situation, not only for this president but
for all future presidents as well.
Legal scholars are debating what the word ``emergency''
means as it's used in the National Emergencies Act, and the
courts will resolve that question if Congress fails to
override an expected presidential veto of their resolution of
disapproval. But there's no real doubt about what the word is
supposed to mean. A president's emergency powers are intended
to be used for addressing sudden or unexpected events, not
just serious problems. Indeed, the National Emergencies Act,
passed in 1976, aimed to curtail--not expand--presidential
discretion to declare emergencies.
What's also clear is how emergency declarations should be
used: To address problems in ways for which there is not only
a general consensus, but also where the pressing nature of
the challenge requires speedy action without the formal and
oftentimes slow process of congressional action. Nothing
about the current situation matches up to that standard.
President Trump's emergency declaration for border wall
funding is almost the antithesis of that model. The problems
at our border may indeed be severe, but they are chronic.
Even more significantly, there is
[[Page S1861]]
not a consensus to pursue the President's approach. To the
contrary, Republicans and Democrats in Congress did negotiate
a compromise--and the President signed it into law. But then
he proceeded to turn his back on the negotiation, the process
and the agreement by declaring a national emergency.
That kind of unilateralism not only conflicts with our
Constitution, it amplifies the worst of our present-day
politics. President Trump is playing to his base, focused on
politics not policy. The result of his approach is more
bitterness and alienation, less trust between parties and a
continued loss of public confidence in our government. It
leaves both parties--our government--far less able to do the
things the American people need and desire. I am proud to
have joined with three dozen former Republican members of
Congress to urge those Republicans currently serving there to
stand for our values and by standing up to the President
against his emergency declaration. President Trump remains
popular within our party, but so is a deeply ingrained
commitment to constitutional conservativism. Opposing your
party's president is never easy, but I am hopeful that
Republicans will vote to uphold the constitutional principles
I know they hold dear.
Mr. UDALL. Madam President, to get this wall money, the President
caused the longest government shutdown in our Nation. The shutdown
caused hardship for millions of Federal employees and lasting pain for
thousands of Federal contractors, not to mention the millions of
Americans who were denied services for 35 days--services they paid for
with their tax dollars.
I visited with New Mexicans hurt by the shutdown and it was very,
very painful to hear their stories.
In the end, Congress decided on a bipartisan basis not to spend the
$5.7 billion the President demanded for his wall. He got $1.3 billion.
I didn't want to see that much, and I wanted to see more restrictions
as to specifically what it was going to be spent for, but it was a
hard-fought compromise, and a deal is a deal.
Congress's determination should have ended the debate for this fiscal
year, the year that we are in.
Now the President is asking Congress for $8.6 billion for the border
wall next year. That is his prerogative, but make no mistake, it is not
only Congress's prerogative, it is Congress's constitutional
responsibility to decide if he gets that money. As the old saying goes,
the President proposes and Congress disposes. President Trump is being
treated no differently than all previous Presidents. That is how our
constitutional system works--or at least how it is supposed to work.
The President's emergency declaration is an end run around Congress,
plain and simple. If any Democratic President issued an emergency
declaration like this, say for climate change or gun safety funding,
Republicans in this body would scream bloody murder and vote to
disapprove.
I am on record that climate change is one of the most pressing issues
on our planet, and I am on record that gun violence is a national
crisis. I have voted for and proposed actual legislation on these
topics, as our system is supposed to work. No previous President has
used the National Emergency Act to bypass the appropriations process
like this. Our Constitution, the rule of law, separation of powers--all
of these rise far above the day-to-day controversies like the
President's border wall.
On a practical note, the President wants to take real money away from
real military construction projects, which will have a real impact on
national security. These military construction projects have been
vetted through years of scrutiny, through the military, through
numerous congressional committees in Congress, and they are projects
deemed essential to national security--projects all across the Nation,
in our States, that are now at risk.
We have a long list of military construction projects by the
President. Yet he has not bothered to tell us which projects would be
cut to build his wall. Will he raid $793 million to rebuild Camp
Lejeune, NC, after the devastation from Hurricane Florence?
Will he steal up to $800 million for Navy ship maintenance to make
sure that accidents like what happened to the USS McCain and USS
Fitzgerald never happen again?
Will he raid $125 million from my State of New Mexico for Holloman
Air Force Base to develop unmanned aerial vehicles to track terrorists
and for White Sands Missile Range to build a badly needed information
systems facility?
The answer is that we don't know, but these critical projects in all
of our States are at risk.
We each need to think about our States and the people we were sent
here to represent. I am from one of the four States that border Mexico,
one of the four States that would be the most directly impacted by any
border wall, and I am here to state there is no national security
emergency along my State's border with Mexico. What is happening at our
border does not justify the use of this authority.
New Mexico's border communities are flourishing with economic,
cultural, and educational activity. Border communities are as safe as
or safer than others in the interior.
This is not a partisan view along the border. Republican William Hurd
represents more than 500 miles of the Texas border with Mexico. He not
only believes the President's emergency declaration is
unconstitutional, but he also thinks the President's wall is ``the most
expensive and least effective way to do border security.''
Again, whether you support or oppose the border wall is not an issue.
What is at issue is our oath to support and defend the Constitution,
whether any President can toss Congress aside and raid critical funds
at will.
We have an opportunity to stand up to an unconstitutional power grab.
I urge everyone in this Chamber to seize that opportunity.
With this, I yield to Senator Collins, who, from the beginning, has
worked with me as we have our resolution in, and we are working hard to
make sure that we stand up for the Constitution.
I yield the floor.
The PRESIDING OFFICER (Mr. SCOTT of Florida). The Senator from Maine.
Ms. COLLINS. Thank you.
Mr. President, later today, the Senate will make a significant
decision with implications for our constitutional system of government.
We will vote on a resolution to reverse the President's ill-advised
national emergency declaration that funds the construction of a border
wall using money that Congress has appropriated and the President has
signed into law for other purposes, such as military construction.
I want to thank Senator Udall, the Senator from New Mexico, for
working together with me. We introduced a companion resolution to
overturn the President's declaration, and I commend Senator Udall for
his leadership.
By declaring a national emergency, the President's action comes into
direct conflict with Congress's authority to determine the
appropriation of funds, a power vested in Congress by the Framers of
our Constitution in article I, section 9. That is why this issue is not
about strengthening our border security, a goal that I support and have
voted to advance. Rather, it is a solemn occasion involving whether
this body will stand up for its institutional prerogatives and will
support the separation of powers enshrined in our Constitution.
Throughout our history the courts have consistently held that ``only
Congress is empowered by the Constitution to adopt laws directing
monies to be spent from the U.S. treasury.''
For the past 65 years, the courts have determined the boundary of
Presidential authority vis-a-vis Congress under the doctrine of
Youngstown Sheet & Tube, the 1952 Supreme Court case that reversed
President Truman's seizure of U.S. steel companies during the Korean
war.
As Justice Robert Jackson explained in his profoundly influential
concurrence in that case, the question of whether a President's actions
are constitutionally valid should be determined by examining the source
of the President's authority. In this concurrence, the Justice goes
through three scenarios in which he assesses the President's power.
According to Justice Jackson, when acts taken by the President are
against the express or implied will of Congress, the President's power
is at its lowest ebb. President Trump's declaration clearly falls in
that category.
The President rests his declaration on the National Emergencies Act,
and that act fails to define precisely what constitutes an emergency.
There is a commonsense rule we can apply. It is a five-part test that
was used by the Office of Management and Budget under
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former President George Herbert Walker Bush to determine whether
requested funding merited an emergency designation under our budget
rules. Under that test, a spending request was designated as an
emergency only if the need for spending met a five-part test. It had to
be necessary, sudden, urgent, unforeseen, and not permanent.
Whether one agrees with President Trump that more should be done to
secure our southern border--and I do agree with him on that goal--his
decision to fund a border wall through a national emergency declaration
would never pass all of this five-part test.
Another concern I have with the President's declaration is, it shifts
funding away from critical military construction projects. We don't
know which ones. We have not been able to get a list, but this could
have very real national security implications. Again, I would note that
the Military Construction appropriations bill incorporated projects
recommended by the President and his Department of Defense, was passed
by both bodies, and signed into law by the President.
Let me emphasize, once again, that the question presented by this
resolution is not whether you are for a border wall or against a border
wall; it is not whether you believe that border security should be
strengthened or whether it is sufficient; it is not whether we support
or oppose President Trump; rather, the question is a far more
fundamental and significant one. The question is this: Do we want the
executive branch, now or in the future, to hold the power of the purse,
a power the Framers deliberately entrusted to Congress?
We must stand up and defend Congress's institutional powers as the
Framers intended we would, even when doing so is inconvenient or goes
against the outcome we might prefer.
I urge my colleagues to support the rulings of disapproval and our
Constitution.
Thank you.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, this is a debate worth happening. I
appreciate the comments from my New England neighbor. It is an
important matter for us to consider.
President Trump declared a national emergency, citing a ``crisis'' at
the southern border, but it has become more and more evident he did it
for one reason, to do an end run around Congress and the Appropriations
Committee, and use taxpayer money to build a wall on the southern
border that Congress has refused to fund.
For 3 years, he failed to convince Congress--a Republican-controlled
Senate and a Republican-controlled House--that his wall was a good
idea. For 3 years, he requested that Congress fund his cynical campaign
promise to build a ``big beautiful'' wall on the southern border, and
for 3 years, the Republican-controlled Congress refused. Even when his
own party controlled both Chambers of Congress, he could not convince
enough Members that it was a good idea. Certainly, nobody accepted his
pledge that Mexico would pay for the wall. We all knew the U.S.
taxpayers would have to pay for it.
So instead of accepting that we are in a democracy, and he is not a
monarch, instead of accepting that we are in a democracy and there are
two other coequal branches of government that could constrain his
actions, the President has decided to ignore the Constitution and the
will of Congress and go it alone. Actually, Congress alone has the
power of the purse. Congress having exclusive power over our government
spending priorities is one of the most critical checks and balances in
our constitutional system.
Anybody who goes back and reads the history of the founding of this
country knows that the reason we are the oldest existing democracy
currently in the world, is that we believed in checks and balances.
The President, of course, could propose funding for whatever projects
he wants, but it is the job of Congress to decide where to invest the
American people's hard-earned tax dollars. In a democracy, every
President from George Washington to now is supposed to respect those
decisions. After not getting what he wanted, this President has invoked
the National Emergencies Act. He is stretching the powers given to him
in that act beyond all recognition. He has declared a national
emergency on the southern border.
We are not responding to a national emergency. There is no crisis on
our southern border requiring such extreme action. What kind of
national emergency is declared only after you lose a 3-year funding
fight with Members of your own party? What kind of national emergency
is resolved by a vaguely defined, multiyear construction project? The
truth is clear. He is trying to use this authority as a means to a
political end.
When Congress enacted the National Emergencies Act in 1976, it
conveyed certain powers to the President to use in the event of a true
emergency that required quick action. I remember. I was here during the
debate. There was a Republican President. It assumed that whoever sat
in the Oval Office would have enough respect for the office and the
power being conveyed not to abuse it. Those of us in the Senate, at
that time, felt that whether it was a Republican or Democratic
President, they would not abuse the power. President Trump has failed
that test.
Presidential emergency powers should only be invoked in a true time
of crisis. It is an abuse of power to invoke these authorities just
because he couldn't do what he wanted in any other way. We are now
seeing what he would do if he had these powers.
The President wants to raid money meant for military housing and
military base improvements to pay for his wall. This comes almost in
the same week we see in the news that so much of military housing is
infested by mold, by rats, by asbestos, and by all these other
problems. Is he going to take the money that would make this housing
safe for the men and women in our military to pay for his wall? Is he
going to take money from Camp Lejeune that was hit by Hurricane
Florence and badly damaged? I know Camp Lejeune. When my son was in the
Marines, he spent time there. Is he going to take money from Tyndall
Air Force base, which was flattened by Hurricane Michael? What about
money for schools for military families, like the school at Fort
Campbell, KY, or a child development center at Joint Base Andrews in
Maryland? What about essential training facilities that would ensure
military readiness, like a special operations training facility at Fort
Bragg, NC--which I have visited. Congress chose to fund these projects
over an ineffective, wasteful wall. Congress had to say, where does the
money go? We felt these things to help our military and military
families made far more sense than the wall. Congress used its
constitutional power--let me emphasize that--Congress used its
constitutional power of the purse to set priorities for how to invest
the American people's hard-earned tax dollars.
The President is trying to label opponents of his action as weak on
border security or weak on crime. That is nonsense. I don't know any
Member of the Senate, of either party, who doesn't believe in border
security or is in favor of crime.
Let's see what he asked for. Instead of border security, he wanted
$5.7 billion for the wall. Congress approved a border security
package--money for fencing along with technology added between the
ports of entry, and additional personnel. That is real border security,
not a political stunt. Now the President is saying: Thank you for your
views; thank you for following your constitutional power, but I am
still going to do it my way. Where is he going to stop?
The fact that it is a political game was shown when this Congress
passed, overwhelmingly, $1.6 billion for border security. The President
threatened to veto that. Then after closing the government for 35
days--costing the taxpayers billions and billions of dollars for
nothing--he signed the bill that did not give him the $1.6 billion that
he threatened to veto but that gave him $1.3 billion, and that he
signed. If anybody thinks this is just playing games, that states it.
Over the past 2 years, we have seen the erosion of our institutional
checks and balances in the face of creeping authoritarianism. The time
has come for Congress and Members of the President's own party to take
a stand. Congress simply cannot afford to remain silent in the face of
such an unprecedented violation of the separation of powers.
[[Page S1863]]
I understand Senator Lee has introduced a bill to reform the National
Emergencies Act. I appreciate the thought he has put into this issue. I
am certainly going to review his legislation with an open mind, but
make no mistake, legislation to fix future abuses of this law does not
address the abuses we have that are happening right now. His bill does
not address the fact that this President is trying to do an end run
around Congress--an end run around Democrats and Republicans alike--and
is cynically using an emergency declaration to fund a request on which
we had voted but of which we did not approve. We must send a message to
the President that this is unacceptable. This is not something we never
voted on. We have voted on this matter, and under the Constitution,
that is what is supposed to carry the day.
I hope my Republican friends will take a moment to take stock of
where we are. President Trump is going to be but a moment in our
Nation's history. The Constitution controls our history no matter who
is President. For the sake of appeasing a man who made a foolish
campaign promise that was never grounded in reality, will they not
stand up for the institution in which they serve? For the sake of
appeasing a President who detests any limits or checks on his
authority, will they forever diminish the role of Congress as a coequal
branch of government?
Now is the time for country over party. I will vote aye on the joint
resolution of disapproval, and I urge all Senators to do the same.
I do not see any Senator who seeks the floor.
Mr. President, is this under controlled time?
The PRESIDING OFFICER. The time is controlled equally between the
proponents and opponents.
Mr. LEAHY. Mr. President, I ask unanimous consent that the time
consumed by the quorum be equally divided between both sides.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. 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. COTTON. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COTTON. Mr. President, the Senate will soon vote on the
President's declaration of a national emergency. We have reached a
moment of crisis, but it is not a constitutional crisis; it is a crisis
on the border, a crisis of American sovereignty. When hundreds of
thousands of foreigners arrive at the southern border and demand entry,
that is not migration; that is an emergency and a threat to our
sovereignty. The stories speak for themselves.
Last Thursday, an American citizen named Rocio Alderete was shot to
death on a bridge over the Mexican border near McAllen, TX. Early
reports suggest Rocio was caught in a shoot-out between cartel gunmen
and the Mexican police, but whatever the case turns out to be, Rocio
has perished--the latest American victim of lawlessness at our southern
border.
Since last October, Border Patrol agents have apprehended more than
260,000 illegal aliens at the border, which is a surge of 90 percent--
almost double from the previous year. For the most part, these aren't
young men who are coming for work, as has been so often the case in the
past; rather, they are Central Americans who are gaming our generous
asylum laws. Instead of running away from the Border Patrol, these
illegal aliens run to it so they can be captured and released into the
country, with notice to appear in court, which they hardly ever do.
Thanks to stupid laws and activist judges, illegal aliens are even
using little kids as legal force fields because being detained with
minors increases their odds of being held in America rather than to be
turned around and sent home.
As a result, we see all of the horrors of the human smuggling trade
at the border today. Women and girls are sexually assaulted at horrific
rates. Hundreds die in the desert each year of thirst and exhaustion.
Infectious diseases we had all but eradicated with vaccines are
appearing again in border communities. ICE health officials have found
236 confirmed or probable cases of mumps among detainees in the past
year after having reported zero cases for the previous 2 years.
This surge of illegal aliens is swamping law enforcement's ability to
do its job. ``Overwhelmed'' is the word we hear so often from agents.
Border Patrol Commissioner Kevin McAleenan says: ``This is clearly both
a border security and humanitarian crisis.''
The consequences of this crisis stretch far beyond the border.
Sometimes it stretches thousands of miles away. An American--1 of 192
every day--dies of a drug overdose. The poison in his veins flows
across the Mexican border. A brave police officer and father, Corporal
Ronil Singh, of California, was shot dead the day after Christmas after
his killer snuck into the country illegally. We have failed to protect
our border, as any sovereign nation must, and our people are dying
because of it.
The President has declared a national emergency because of this
crisis. Yet the administration's sensible, long overdue efforts to
secure the border have been met only by howls of outrage from the
Democratic Party and its media wing. Judging from their reaction, you
would think the real emergency was not our lawless border but any
genuine effort to secure it. The minority leader called the President's
emergency declaration a ``lawless act'' that showed ``naked contempt
for the rule of law.'' Other members of the self-styled resistance have
compared the President to Hitler.
These are curious, overheated claims, I have to say. To be lawless,
after all, one must act outside the law. Yet the President's critics
don't even bother making that case, probably because they don't have
much of one to make.
The President isn't purporting to invoke his inherent Executive
powers under article II of our Constitution. He does not even claim to
defend his constitutional prerogatives from legislative encroachment.
On the contrary, he is only exercising the statutory authority that has
been delegated to him by us, by this very body--the U.S. Congress. More
than half of the $8.1 billion the President is using to build the wall
and secure the border comes from nonemergency statutes that have been
passed by Congress. The remainder comes from an explicit delegation of
various powers to the President in the event of a national emergency,
just like the one the President has declared, which we also delegated
him the authority to do. I should add, the National Emergencies Act
passed nearly unanimously, with only five ``no'' votes in the House.
I am sympathetic to arguments that the National Emergencies Act is
too broad and gives the executive branch too much power. That is a
reasonable debate to have. Believe me, Congress has ceded too much
power to the Executive for more than a century and has expanded an
administrative state that increasingly deprives our people of having a
meaningful say in their government, so I invite my Democratic
colleagues to reconsider the wisdom of this path.
Maybe we can also reform the EPA. Perhaps we can require up-or-down
votes in Congress in order to approve big regulations so politicians
around here can show some accountability for once. I am ready to have
those debates. Believe me, I am ready. In the meantime, don't pretend
we didn't delegate all of these powers or that it is lawless for the
Executive to use the laws we have passed just because you deplore him.
If you want to see lawless Executive action, by the way, you can
look, instead, to the last administration. President Obama purportedly
gave millions of illegal aliens legal status and work permits, which
was in clear violation of statutes that had been passed by this
Congress. He also expressly defied our ban on bailout payments from the
ObamaCare slush fund to big health insurance companies. It is strange
how I don't recall the self-styled resistance manning the ramparts and
rushing to the Ninth Circuit back then. In fact, I only recall a lot of
congressional fanboys of the President's using the pen and phone to
encroach on our constitutional prerogatives.
I have also heard from some Senators who admit the President is
acting lawfully but who worry about the slippery slope of Executive
power. I respect this
[[Page S1864]]
view. Our system of separated powers calls on each branch to jealously
protect its own powers, but one can ski to the bottom of a slippery
slope pretty fast. A Republican declares a national emergency today on
the border. A Democrat--or who knows these days, maybe a socialist--
will tomorrow declare a gun violence emergency to confiscate guns or
will declare a climate change emergency to shut down coal-fired
powerplants.
I acknowledge it doesn't take much to imagine such abuses by a future
liberal President, especially with the gang they have running today,
but that is precisely what such actions would be--abuses. What the law
says matters here. We have delegated to the Executive the power to
enforce the Nation's immigration laws, including by an emergency
declaration. We have not delegated to the Executive the power to
confiscate guns, to close powerplants or any of the other common
entrants in the parade of horribles on the slippery slope. That is the
difference between lawful and lawless government, and that is the case
here.
Still, others claim the crisis on the border isn't bad enough to call
a national emergency. Some have gone so far as to deride it as a fake
emergency. If killings, caravans, and cartels at the border are fake
emergencies, I would really hate to see a genuine emergency.
Let's suppose we take their claim seriously. We at least ought to
compare the crisis at the border to past national emergencies to see
how they all stack up. Right now, there are 32 national emergencies in
effect--32 national emergencies. Among them is a national emergency
related to election fraud in Belarus. Another is in response to the
breakdown of the rule of law in Lebanon. A third is in response to a
failed coup in Burundi.
I don't deny that those are all genuine problems or that an American
response may well be warranted--far from it. Yet I doubt many Americans
would put them ahead of a serial violation of our sovereign border by
millions of foreigners. If the Belarusians warrant an emergency
declaration, then surely Americans do, too, when we face a crisis at
our southern border.
The Democrats used to take border security seriously, but in elite
society these days, ``border security'' are bad words, and ``wall'' is
practically a four-letter word unless they are the walls that protect
the rich and the powerful and the politically connected from a
dangerous world. Look in the news. The Democrats' newest Presidential
aspirant, Robert Francis O'Rourke--a former Congressman and failed
Senate candidate--has gone so far as to suggest the tearing down of
existing barriers at the southern border, which I am sure has thrilled
all of the good people in El Paso who don't live in a world of private
planes and security details.
Regrettably, the Democrats' hostility to border security couldn't
come at a worse time for our country because there is, indeed, a crisis
at the border, and we ought to be addressing it.
We could be spending this valuable legislative time tightening up our
asylum laws or cracking down on employers who exploit illegal aliens
instead of hiring American workers or ramping up drug enforcement.
Instead, we are debating whether a crisis at our southern border can be
called an emergency. Instead of solving a problem, we are trying to
spin it.
So I have a simple suggestion for my colleagues: If you are genuinely
alarmed by the President's invocation of the very emergency powers we
delegated to him, instead of furrowing your brows and tugging your
chins and gravely citing Youngstown Sheet, let's tackle this emergency
declaration by making it unnecessary. Let's get to the root of the
problem and secure our border once and for all. No more border crisis,
no more emergency--it is as simple as that.
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. DURBIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Prescription Drug Costs
Mr. DURBIN. Mr. President, last month, I launched a new series of
floor speeches to recognize what is going on with prescription drug
pricing across America.
When you ask the American people about the economic things that are
on their minds, it is No. 1--the cost of prescription drugs. No. 2 is,
have I saved enough money for my retirement? It really gets to the
heart of the concerns families have every day. Each one of us knows
that the cost of prescription drugs is going up, and we also realize
how vulnerable we may be as individuals if one of those drugs is a
matter of life and death.
I came to the floor 2 weeks ago to talk about the cost of insulin.
Seven and a half million diabetics across America have seen dramatic
increases in the cost of insulin--increases that can't be justified
because the same American companies selling the same drugs in Canada do
it for a fraction of the cost. Americans pay outrageous prices.
Humalog, which is one of the most popular forms of insulin, costs
$329 a dosage in the United States. Twenty years ago, it was about $29.
It has gone up in price 35 times in that 20-year period of time. How
much does the exact same drug that costs $329 in the United States cost
in Canada? It is made by the same company. Thirty-eight dollars. You
look at that and you think there is something wrong here. The
pharmaceutical industry is not focusing on giving American consumers a
break.
What I want to talk about today goes to an issue that is hard to
believe but true. A few years ago, the New York Times reported that
nearly $3 billion worth of drugs was wasted each year. These are not
ordinary drugs; these are cancer drugs used in chemotherapy. Medicare,
Medicaid, and private health insurers spend billions of dollars on
medications. Many of them are literally thrown in the trash. How could
that possibly be?
You see, for many of the most expensive drugs, like new cancer
treatments, the pharmaceutical industry produces them in a one-size-
fits-all container, a single-use vial that a physician has to draw from
to give a treatment to a patient. The dosage for the patient in the
cancer therapy is based on the patient's size and weight. The problem
is that the pharmaceutical industry insists on selling these drugs in
excessively large vials that contain dramatically more medicine than
the average patient would need, so doctors administer the proper dosage
and throw away the rest.
Here is a graphic to illustrate what I am talking about. Here is why
we are wasting billions of dollars each year on cancer drugs. One size
does not fit all.
This drug, Velcade--the vial size available is 3.5 milligrams. The
patient dose is 2.2. The amount that is left over is 1.3. Oh, you are
going to recycle that? You can't do it. That is the end of it, and it
is thrown away. In 2016, $300 million was wasted in this way.
This vial, the first one here that is produced, is a vial that would
apply to a person who is 6 feet 6 inches tall and weighs 250 pounds,
which means our linebacker Khalil Mack on the Chicago Bears--God forbid
he would ever need it--that would be his dosage size. Most people are
not as big as Chicago linebackers.
Why is Pharma sending us one vial, take it or leave it? Because they
make money. They make money when we buy it and have to throw it away.
Takeda Pharmaceutical sells this drug for those who are suffering
from multiple myeloma and lymphoma. As I mentioned, it is for a person
who is 6 feet 6 inches and weighs 250 pounds. Takeda made $310 million
in the year 2016 off of unused Velcade that got thrown in the trash--
$310 million.
What makes this even more appalling is that the pharmaceutical
industry titans actually sell the same drug in smaller containers in
other countries but not in the United States. Here, we are forced to
buy the largest container and throw away the difference.
This chart shows that the same company--Takeda--that makes Velcade
sells this drug not in 3.5-milligram vials, as in the United States,
but, in Europe, in 1-milligram vials. It seems like a simple thing,
doesn't it, that you would dispense this drug in a manner so that it is
not wasted? Sadly, wasting and throwing away the drug is part of their
marketing strategy.
[[Page S1865]]
Another Japanese company, Eisai, sells its chemotherapy drug Halaven
only in 1-milligram vials in the United States but sells smaller
vials--0.88 milligram--in Europe.
Merck's immunotherapy drug KEYTRUDA, which is truly a breakthrough,
an amazing drug--research was done by taxpayers at the National
Institutes of Health, which led to the development of this drug--they
sell this drug, KEYTRUDA, only in 100-milligram vials in the United
States but in 50-milligram vials in Europe. In 2016, Merck made $200
million on KEYTRUDA--this lifesaving drug--that was thrown away.
In 2016, I asked the inspector general of Health and Human Services
about this waste of taxpayers' money. The inspector general uncovered
that Medicare spent $195 million in just 1 year on 20 identified drugs
for medication that was thrown away. That year, Takeda received $47
million in taxpayer funding for amounts of Velcade thrown in the trash.
It wasn't alone. Genentech's Rituxan, one of the most common cancer
medications, only comes in vials that are 100 milligrams or 500
milligrams. In 2013, Medicare wasted $10 million on Rituxan that was
thrown away.
It is for this reason that I am presenting my second Pharma Fleece
Award to Takeda, Eisai, Merck, and Genentech. Patients in America
should not face higher drug costs because these Pharma fleecers choose
to sell their expensive cancer drugs in excessively large drug vials
that are necessarily going to be wasted.
Two weeks ago, I teamed up with Republican Senator Rob Portman of
Ohio to introduce the REFUND Act--a simple bill that Senator Portman
and I have introduced, and I hope others will join us. It says that
taxpayers will only pay for the drug that is given to a patient, not
for the part that is thrown away. Medicare already tracks how much of
this medication is being discarded, so the REFUND Act simply requires
Medicare to determine how much was wasted and to recoup the money from
the drug companies. We then provide a portion of that money back to
seniors for the 20-percent coinsurance they have to pay for the drugs.
An important point: When Medicare is paying for these drugs, and a
lot are being thrown away, the seniors are still paying their 20
percent, even for the drug portion that is being thrown away. So Rob
Portman's bill--the one I have introduced with him--says that the money
recouped from the drug companies will go back to the benefit of these
seniors. Under our new bill, this pharma fleecing for drug vial waste
will soon come to an end so that not just the patients but our
government will save money.
Remember the bottom line. When you ask the major health insurers
today: What is driving the cost of health insurance premiums, they say:
Senator, prescription drug pricing is No. 1.
Blue Cross Blue Shield, based out of Chicago, when I sit down with
them, say: We spend more money on prescription drugs than we do on
inpatient hospital care.
To give you an idea, it is out of sight. You can't turn on a
television set, particularly if you are over the age of 50, without
being bombarded with all these drug ads, right? You have heard them
over and over again.
The No. 1 drug being sold on television today is HUMIRA. What is it
for? psoriatic arthritis. It is serious. If you have that arthritis,
that may be a lifesaver for you, but it is now being sold for that
little red patch on your elbow called psoriasis. Interesting. Do you
know how much HUMIRA costs each month? Five thousand dollars.
I have legislation that would require these drug companies to
advertise the cost of their drugs on television. They tell us
everything else; don't they? They tell us, if you are allergic to
HUMIRA, don't take HUMIRA. I have never understood that warning. They
tell us everything under the Sun, but they never mention the price. So
what I want to do is get the price out in front of the public, and let
them know what being perfect in a swimsuit is going to cost you per
month.
From my point of view, there are people who need these drugs
desperately, and we ought to try to get the prices within their reach.
For those who are overusing and abusing the airwaves of America to
advertise drugs--to try to push doctors into writing the scripts even
when it is not necessary--we have to come to grips with this. If we
don't, we are not going to have a serious effort to reduce the cost of
health insurance and the healthcare costs that face our Nation.
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. BENNET. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
H.J. Res. 46
Mr. BENNET. Mr. President, I want to congratulate the Presiding
Officer on being in the Senate and presiding over the Senate.
I come to the floor to remind us how we got here. President Trump
told us over and over and over again during his campaign that Mexico
would pay for the wall. He said it at the beginning of the campaign. He
said it in the middle of the campaign. He said it at the end of the
campaign.
He made that promise over and over again. The U.S. Congress didn't
make that promise. There is no way for Congress to force Mexico to pay
for the wall. We cannot force Mexico to pay for the wall. It is not
Congress's fault. It is the President's fault, and it is his promise he
has broken.
Instead of going to Mexico to get them to pay for the wall, as he
said he would do over and over again, he has now asked Congress to pay
for it. He has now asked the American taxpayer to fulfill his broken
promise.
By the way, that is after 2 years of having a Republican majority in
the Senate and a Republican majority in the House who said: We don't
want to build your wall. We are not going to help you keep your
promise. In fact, you promised Mexico would pay for the wall. Go get
Mexico to pay for the wall is what the Republican Senate and the
Republican House said.
So he was frustrated. He said how frustrated he was. He went out to
the American people during the 2018 election, and the people rewarded
him by electing Democrats to be the majority in the House of
Representatives.
Then, last December, those Democrats offered the President $1.3
billion for border security. It wasn't for his medieval wall. It is for
what he now calls steel slats.
Instead of accepting that fact--the fact that nobody here wants to
fund the wall he said Mexico would pay for--he shut down the government
for 35 days. Then, after all the misery he inflicted, after the
billions of dollars he cost our economy, to say nothing of what he did
to the Federal workers, he basically got exactly the same deal as he
got before he shut down the government, making the shutdown pointless,
making the billions of dollars of lost wages and economic activity in
America pointless, all a casualty of his inability to keep his promise
that Mexico would pay for the wall and his inability to get Republican
majorities in the House and the Senate to build his wall.
So having failed to get Mexico to pay for the wall, having failed to
get a Republican Congress to pay for the wall, he now says he is going
to declare a national emergency to pay for the wall.
We should ask ourselves--we must ask ourselves--whether this is an
appropriate use of emergency power. By the way, if it was an
appropriate use of emergency power, why didn't he just declare an
emergency before he shut the government down for 35 days? Why cost the
economy billions and billions of dollars if you can just do this by
declaring an emergency? The easy answer for that is that it is not an
emergency.
He is only doing this now because he lost the negotiation. He lost
his leverage. He embarrassed himself by having the longest shutdown in
American history.
This is not a national emergency. This is just plan B. The President
has admitted as much as he was signing the declaration itself--the
declaration of emergency. He said:
I didn't need to do this, but I'd rather do it much faster.
. . . I just want to get it done faster, that's all.
It is not an emergency. He just wants to get it done faster, which is
astonishing coming from a guy who has not spent the money that Congress
has already appropriated for the wall. He
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hasn't even spent that money, and now he is saying he wants to go
faster, and he has to declare a national emergency to do it.
By the way, America, you may have noticed that the President is also
now saying that ``much of the wall has already been fully renovated or
built.'' ``Much of the wall has already been fully renovated or
built.'' That is what your President is saying to you at the exact same
time he is saying that he needs a national emergency to build the wall.
It is preposterous. It is a joke.
On top of everything else, he is not telling the truth about that. He
has not built a mile of this wall since he has been President of the
United States, even though Congress has appropriated more than $1
billion--I think about $1.7 billion--to do it.
When he signed the emergency declaration, he said that national
emergencies have ``been signed many times before. It's been signed by
other presidents from 1977 or so; it gave the presidents the power.''
``There's rarely been a problem'' the President said. ``They sign it.
Nobody cares.'' That is what he said.
Nobody cared because those were real emergencies, not fake
emergencies. They weren't emergencies being declared by Presidents who
had promised that Mexico would do something, and then it didn't happen,
and now they had to declare an emergency. They certainly were not cases
where the President came to the Congress, including a Congress of their
own party, and said, I want to do something, and they said no. Then,
they said: Well, we are going to declare an emergency.
That has never happened before in American history.
By the way, if we go down this road, this will not be the last time
this happens. This will happen time and again, which is why every
Member of the Senate should vote for this measure of disapproval.
Since 1976, when Congress passed the National Emergencies Act,
Presidents have declared national emergencies 58 times. Fifty-three of
those times have been to do things like block the sale of weapons to
foreign countries or to sanction governments, like Iran and North
Korea. The four remaining cases were after two U.S. planes were shot
down by Cuba, after we invaded Iraq and desperately needed to protect
critical infrastructure, after the outbreak of swine flu, and after 9/
11.
Failing to fulfill his promise that Mexico would pay for the wall is
not a national emergency, and if he thinks it is, he should sanction
himself for failing to keep his promise.
As I said earlier--and this should bother everybody who believes in
our system of checks and balances and who believes in the
Constitution--never has a President sought to enact a national
emergency like this after Congress has said no. In our Constitution,
Congress has the power of the purse. Every single Senator should be
voting to protect that.
Over the months and now stretching into years, I have been shocked at
how the people around here who declare that they are constitutional
conservatives have put up with a President who obviously doesn't care
about the rule of law, doesn't care about the separation of powers--as
you see here--isn't concerned about having an independent judiciary,
and wants to threaten the leading journalists of this country, calling
them fake news.
I would think this step would be one step too far, even for anybody
in this Chamber who supported this craziness up until this point.
Let's add it all up. What has it gotten us? The President couldn't
get Mexico to pay for the wall. He couldn't get a Republican House and
a Republican Senate to pay for the wall. So now he is violating the
Constitution to steal money that has been appropriated by this branch--
by Congress. He is stealing that money from the Department of Defense,
from our warfighters, and from the U.S. military to expropriate private
land held by American farmers and ranchers--many of whom I assume are
Republicans--through eminent domain.
As I have said on this floor before, if any President tried to do
that in Colorado, there is not a person in our delegation who would
support that--stealing our farms and ranches.
It must be said that, for a politician, he has a very unusual view
about eminent domain. Here are some quotes of his: ``I think eminent
domain is wonderful.''
For those of you who don't know what eminent domain is, it is when a
government decides it wants a project, and your house is in the middle
of where that project is going to go. Then, the government can use this
thing called eminent domain to take your house and pay you for it. That
is what it is. It is rarely used because most people don't want the
government deciding whether they can live in their house or on their
farm or on their ranch, which--in the case of people on the border of
the United States--has been in their family for generations. That is
why the local Congressman down there doesn't want this wall built. I
think he is a Republican.
But the President said: ``I think eminent domain is wonderful''--not
sometimes essential, not a tool that is useful from time to time. He
said it is ``wonderful.''
He said: ``Eminent domain is something that has to be used, usually
you would say for anything that's long, like a road, like a pipeline,
or like a wall, or a fence.''
He didn't say steel slats, but I am sure the same thing applies.
Here is another quote. This is fascinating. I have not met a single
person in Colorado who would agree with this--not one--and I bet you
there is not a person in Mississippi or Texas or Alabama who would
agree with this sentiment either. This is what the President of the
United States said:
Most of the time, they just want money. It's very rarely
they say, ``I love my house, I love my house, it's the
greatest thing ever.''
Here is another quote--and just for everybody who is watching this
because people are going to come out on this floor and say: Oh, no, the
money will not be used for it in this case--not for a wall, not for
eminent domain.
Donald Trump says:
We are going to need a little eminent domain to get that
wall built, just so you understand. . . . You need eminent
domain, you have to take certain areas, okay?
That is the kind of language you would expect out of some autocrat
someplace, not in a democracy.
I say to my Republican friends here who are going to vote with the
President on this bill, that is what you are supporting when you are
voting with him on this bill.
I don't know how anybody goes home and defends that. For anyone who
wants to go home and defend misappropriating money that has been
dedicated to the Department of Defense and to our military and to take
that money extra-constitutionally and use it to take the property of
law-abiding citizens, I don't understand how you defend it.
I am not making any of this up. These are his words. By the way, it
is no wonder he can't get it through the people's Representatives in
Congress because there is not a single person here who would ever admit
to doing what he is about to do and what he says he wants to do. What a
betrayal of conservative principles this is.
As I said, this whole exercise itself is an admission that he has
broken his promise to the American people.
We didn't break it, Republicans in the Senate. We didn't break it,
and we should not help him keep it if it is going to break the
Constitution. In fact, we can't help him keep it unless somebody around
here has a way of persuading Mexico to build the wall or pay for the
wall, which I don't think there is a single person here who has that
kind of influence, as influential as all of us think we are.
I don't understand it, but it is amazing to me why people would cash
in their conservative principles so cheaply--$3.6 billion.
The idea that you would be willing to give up your principles in such
a tawdry exchange should be infuriating to the real conservatives who I
know are in this country. Many of them live in my State of Colorado,
which is a third Republican, a third Independent, and a third
Democratic. Don't come to our State and tell us you are taking away our
houses because we don't care about them--that we will just take the
money instead for a broken promise that you didn't keep. That would not
sell in Colorado. I don't know why it sells in Texas. I can't imagine
that it does. I don't know how anybody could support that.
By the way, that is not even the most important point. The most
important
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point is that we have ground ourselves up for a 35-day government
shutdown, for 3 months of media cycles on this fight by the President
on a wall that he now says is almost fully built, while he is declaring
an emergency to build a wall that hasn't been built.
While we are screwing around here to keep a broken promise that
Mexico is going to pay for the wall, this is what was going on in
China. By the way, I know somebody is going to say: Hey, they have a
wall. They do have a wall. They built it 500 years ago. That is not
what they are working on today. They took care of that medieval wall
500 years ago.
Today, what they are doing is they are spending $125 billion on high-
speed rail this year alone. That is $125 billion on high-speed rail.
You get on one of those trains and you could hear a pin drop. If you go
on Amtrak, which I take all the time--I feel grateful that we have it--
it is less than half the speed, and you can't put your Coca-Cola on the
table in front of you without it falling over or falling on your
neighbor.
China has spent $300 billion on new roads, bridges, and ports across
the globe through their Belt and Road Initiative. They have bought
stakes in 16 different ports across Europe and the Mediterranean, some
of which have fallen into their hands because--and this is part of the
plan--the debt that the countries have put on to build the ports is so
onerous that China gets to own the ports. They have built the longest
sea bridge in the world. They have laid over 3,700 miles of fiber optic
cable to connect Africa to Latin America and, ultimately, to China. On
that Belt and Road Initiative, they have laid their technology over
that with fiber optic cables so they could extend the surveillance
society that they are building inside of China right now, while we
screw around with this wall.
By the way, on the $3.6 billion for the wall, here is an interesting
chart. Here is how much cement China used over a 3-year period, from
2011 to 2013. This is what they used in 3 years, 2011 to 2013. I was in
the Congress then. We were in the depths of the great recession during
that period of time. It was 6.6 gigatons of concrete. Here is how much
we have built in concrete in 100 years: 4.5 gigatons.
They used 4.5 gigatons in 3 years. They have used dramatically more
than we have used in 100 years, and we can't even get an infrastructure
bill off this floor. The White House can't even write an infrastructure
bill.
All night, every night, on the cable, all we hear is $3.6 billion for
the wall, the wall, the wall--the wall that the President says has
already been mostly built, that he is now declaring a national
emergency to build.
The world is racing ahead of us, as I have said on this floor over
and over again, while we are getting run around by one inane
distraction after another. It has been said that the President is
somebody who is mostly concerned with winning the politics of any given
day. That is what he tries to do, and he is often very effective at it.
We spend a lot of time talking about him and his priorities, unlike
figuring out a plan to counteract what China is doing or others are
doing.
I bet they have a great strategy in China and Iran. Russia is not so
obviously good at that strategy. Actually, come to think of it, they
are pretty good, too. If you can stay off FOX News, the President will
not pay any attention to what you are doing, so go do whatever it is
you want to do while we fritter away one day after another of the
American people's time over a broken promise that he never could keep.
Unless we are prepared to be the first generation of Americans to
leave less opportunity, not more, to the people coming after us, we
need to do a lot better than what we are doing, and part of that is to
ensure that we preserve the institutions that built this country, like
the one we are standing in right now.
I know that among some people there is an effort to divide the
government from the American people and that there are people here who
think they have been sent here for one purpose, which is to discredit
the Federal Government.
I have a lot of problems with the Federal Government--lots of them. I
was a school superintendent before I came here. I have a lot of
problems with what is happening to poor children who are going to
schools in our public system of education across the country, so I am
not here to defend government or the way it works right now. In fact, I
don't think Democrats should be the party defending bad government. We
should fix it where it needs to be fixed.
We are talking here about our institutions. We are talking here about
the rule of law. We are talking here about the Constitution that
generation after generation after generation of Americans has
preserved--not always perfectly, often very imperfectly.
Every generation of Americans has seen it as their obligation, their
responsibility, to at least try to live up to the pages in our founding
documents, and where we failed, we got up and we tried again. This
whole country is founded on the idea that we will have disagreements
because we live in a Republic, and in a Republic, you have
disagreements. There is no King or tyrant to tell you what to think.
That is the reason we live in a democratic Republic.
This place here and the Chamber down the hall are part of the
mechanisms that were drafted into our founding documents for us to
resolve our disagreements. The Founders believed something. They had no
good example in the past, but here is what they believed. They believed
that out of that vigorous disagreement, we would create more
imaginative and durable solutions than any tyrant could ever come up
with on their own. That is why they designed the institutions the way
they did, and that is why they created the checks and balances that
they did. There is a reason no President has ever done what this
President is trying to do.
They exercise self-restraint because of what is in the Constitution
and because nobody on this floor would have supported him. There are
many ways this generation of politicians--and I accept my share of the
blame. There are many ways in which we have degraded these institutions
in our time. We have destroyed the Senate's responsibility to advise
and consent on judicial nominations and Supreme Court nominations. That
has been turned into a purely partisan exercise by this generation of
American politicians. I am ashamed of that. I am ashamed to have been
here when we did that, and I take my share of the responsibility.
What I say to my colleagues is that we cannot continue to degrade
these institutions and expect that the next generation of Americans is
going to look back on us with anything except contempt. Generation
after generation after generation of Americans has preserved these
institutions so the next generation could have the opportunity to
resolve their disagreements in these Chambers. We will regret it. We
will regret it if we go down this road.
As the majority leader said in another time: Things have a way of
changing around here sooner than you think, and someday the shoe will
be on the other foot. If this Republican sets this precedent and some
Democratic President follows it, that is one more step away from living
in the Republic that we all claim we cherish, from the democracy we all
claim we cherish, to put power in the hands of a tyrant who may or may
not represent the will of the American people.
We may never get another vote like this around here. This is going to
be the time that each of us is going to decide whether we are going to
act to preserve these institutions for the next generation or whether
we are going to continue to degrade them in our mindless partisanship
and, in this case, to somehow fulfill a promise the President never
could keep. That would be a shameful day in the U.S. Senate.
I yield the floor.
The PRESIDING OFFICER (Mrs. Fischer). The Senator from Texas.
Mr. CORNYN. Madam President, when President Trump declared a national
emergency over the crisis along our southern border, it was immediately
met with expressions of concern--some, in my view, illegitimate;
others, quite legitimate.
As I have said in the past, I will repeat again that this--what we
are doing here today--is no one's first choice, but it is useful to
recall how we find ourselves at this point today.
Of course, when it comes to funding, when it comes to appropriations,
Congress holds the purse. That is why,
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each year, the Congress receives the President's budget request for the
upcoming fiscal year, just as we did earlier this week.
Even though, in the President's budget, he outlines his priorities,
my experience in the Senate is that most Presidential budgets, while
they are an expression of the President's priorities, are dead on
arrival. It then falls to us, in the Senate and the House, to look at
his request and to work on a compromise budget and appropriations
process and fund the operations of the Federal Government.
This process is arduous, it is time-consuming, and it is often
frustrating, but it is the way the system is supposed to work. As all
Americans can attest, what we have seen over the last few months looks
like something very different. The refusal of Democrats in the House
and the Senate to engage in negotiations on border security funding led
us to a 35-day government shutdown.
Despite the clear message from border security experts, despite
seeing the humanitarian crisis at the border, described by President
Obama in 2014, get many times worse, our Democratic colleagues decided
to play politics instead of dealing with the problem.
We heard the Speaker of the House call border barriers immoral. The
minority leader here in the Senate said that there would be no
additional money for physical barriers along the border. They know,
just as I know, that back in 2006 and 2008, the Secure Fence Act was
passed with broad bipartisan support, including support from then-
Senator Barack Obama, then-Senator Hillary Clinton, and Senator Chuck
Schumer, currently the Democratic leader in the Senate, who now feels
that this President should not get any additional money to fund border
security measures that the President believes are an important response
to the crisis we see at the border.
My preference would be for the normal appropriations process to be
used, but when your negotiating partners refuse to take a seat at the
table, normal goes out the window. Our colleagues across the aisle left
the President with few options to fund what he believed was so
important for the Nation's security, and that is what led us to this
situation.
Enter the 1976 legislation, the National Emergencies Act. What the
President did is ask his lawyers to look at what other authority, under
congressionally passed laws signed by previous Presidents, might he
have to access additional funds, and his lawyers pointed to the 1976
National Emergencies Act, which has granted Presidents, since that
time, broad powers to reprogram funding previously appropriated by
Congress.
This idea that somehow this is an unconstitutional act by this
President is simply wrong. Congress has given the President this
authority. They may regret it today or they may disagree that this is
an emergency or they may disagree with the way the President wants to
spend the money to secure the border, but, clearly, the President is
using authorities the Congress has previously granted, not just to him
but to all Presidents since 1976.
My father liked to remind me growing up--one of the things he always
told me is that hindsight is always 20-20. Our predecessors did not
anticipate the fights we would be having today, which are largely
contrived and unnecessary. We should be working together to solve these
problems, not engaged in a zero-sum game of political brinkmanship.
That is what brought us to where we are today.
I think it is appropriate to look at what Congress did in 1976, and
in a prospective sort of way, ask ourselves: Have we delegated too much
authority to Presidents since that time? There are literally 123
statutory authorizations that could be invoked under the National
Emergencies Act--123 times that Congress has said a President, upon the
declaration of a national emergency, can reprogram money that Congress
has appropriated--123 times. That was a shock not only to me but, I
dare say, to virtually all of our colleagues here in the Senate.
Many of these statutory grants of authority are exceedingly broad.
They cover everything from the military to public health to Federal pay
schedules. With these broad authorities already part of the law, the
emergency powers provision could be viewed as a fail-safe for an agenda
that the administration--an administration alone--is pushing. Let's
say, hypothetically, that a future President decides there is a need to
declare a national emergency over climate change. Maybe they decide
this is a way to enact the Green New Deal being pushed by some of our
colleagues across the aisle.
Considering the potential scope and scale in which these powers could
be abused in the future and this overdelegation of authority that
Congress has done 123 times, I believe we should take a look at the
National Emergencies Act, once we vote today, and have a fulsome debate
and discussion about whether this is really the sort of delegation of
powers that the Founding Fathers intended when they said that distinct
separated power should be given to each branch of the government: the
legislative, the judicial, and the executive branch.
It is clear that the President is operating within the authority
Congress has given to him. You don't have to like it. You don't have to
agree with it, but it is clear the President is operating within the
authority Congress delegated to him. Rather than talking in circles and
debating that fact, I think our discussion should focus on the
structure of emergency powers moving forward.
I believe there is a need to rein back in some of the authority that
Congress has delegated to presidents just as a constitutional concern,
as a constitutional matter, which is why I am cosponsoring a bill which
has been introduced by our colleague Senator Lee which gives Congress a
stronger voice in processes under the National Emergencies Act.
That bill will now be referred to the Homeland Security Committee.
Chairman Johnson has said he will give that bill a hearing and then a
markup. Then I would expect, at some point, that legislation will make
its way to the Senate floor where we will have a debate and a vote.
The proposal would allow the President to maintain his statutory
powers to declare an emergency, but that declaration would end after 30
days unless Congress affirmatively votes to extend it. This would
maintain a President's ability to provide funding during national
emergencies while restoring Congress's proper authority under article I
of the Constitution. I think this is an honest and important effort to
hopefully prevent us from ending up in this predicament in the future.
The real cause of where we are today is just politics--Ms. Pelosi's
deciding that building any border barrier was immoral, after Democrats
and Republicans had not made that a particularly political decision in
the past. In fact, it had been bipartisan that we did support it as one
tool in the toolbox for Border Patrol, in addition to technology and
personnel, some physical barriers.
Rather than scolding the President of the United States for
exercising statutory authority that Congress has already given, we
should try to work together to solve these problems rather than
engaging in the kind of political brinksmanship that brings us here
today. We should fix--should it be the will of Congress--this massive
delegation of authority not just to this President but to any President
since 1976.
I have to disagree with our colleague from Colorado and others who
suggest that what is happening at the border is not serious. By the
way, I haven't heard any of them suggest any alternative solutions.
Perhaps instead of Border Patrol securing the border we ought to have
police officers at the border directing traffic, waving people through
to their chosen destination. I think that would be a terrible mistake,
but that seems to be the only alternative our friends across the aisle
are offering to this humanitarian crisis and emergency at the border.
Last month, 76,000 people illegally crossed the border and were
apprehended by U.S. Customs and Border Protection, making this an 11-
year high. So rather than 76,000 people in 1 month, which our
Democratic colleagues don't seem to think is a problem, let's say next
month it is 150,000 or 300,000 or 600,000. As long as we have this
attraction for people from other countries to come to the United
States, and if they pay the fee to the criminal organizations that
transport them
[[Page S1869]]
here, they will successfully make their way into the United States.
They are going to keep coming.
It is clear this problem isn't going away, and it is overwhelming the
communities along the border as well as the Federal Government's
ability to deal with it.
I remember what the Director of Customs and Border Protection said.
He said: When the Border Patrol is handing out diapers and juice boxes
to children coming across the border, the drug cartels will exploit
that and move their poison into the United States. I will just remind
my colleagues that more than 70,000 Americans died of drug overdoses
last year alone. A substantial amount of it was synthetic opioids in
the form of fentanyl, but a lot of it had to do with heroin that had
made its way from Mexico into the United States because 90 percent of
the heroin that comes into the United States comes from Mexico. So
while the Border Patrol is handing out diapers and juice boxes, the
drug cartels are moving in heroin, fentanyl, and methamphetamine across
the border into our Nation and getting rich in the process.
We know border security is complicated, and that it is not just about
security, it is about facilitating legitimate trade, travel, and
commerce. Last year alone, there was $300 billion worth of commerce
that took place just at Texas ports of entry with Mexico--$300 billion.
That supports an awful lot of American jobs.
The terrain in the 1,200-mile border between Texas and Mexico varies
significantly. What works well in one sector does not work well in
another. What I continue to hear from my constituents, including
elected officials at the border, is that if this is the Border Patrol
telling us what they need in order to succeed to do the job we have
asked them to do, we are all in, but if this is just politics and
elected officials in Washington trying to micromanage the solution
along the border, we are skeptical. This is what they tell me, and I
don't blame them.
I think we need to take action to adequately fund our border security
missions, and I hope our discussions in the coming months will be more
productive than they will be this year.
I will vote against the resolution of disapproval today and encourage
my colleagues to instead ask my colleagues to focus their energy on
reforming the legislation that got us into this situation to begin
with.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mrs. SHAHEEN. Madam President, I am here this afternoon to support
the resolution that would terminate the President's unconstitutional
emergency declaration. It is a declaration that would take money away
from critical military construction projects to fund a costly and
ineffective border wall.
Congress did not provide these funds for a border wall that President
Trump promised Mexico would pay for; rather, we specifically allocated
these resources that are being talked about to be used by the President
for the wall to ensure that our military is ready and capable and that
our servicemembers receive the support they deserve.
The President's attempt to circumvent Congress by making the military
pay for his border wall jeopardizes our national security and does a
disservice to our men and women in uniform. That is why the House
passed the legislation on the Senate floor today and why I introduced
legislation with my colleagues in the Senate to terminate the emergency
declaration.
The resources Congress has provided support military construction
projects in New Hampshire and across the country. Those projects often
provide necessary infrastructure improvements that enable our
servicemembers to accomplish their mission.
Several of those projects that, I think, are potentially being
reviewed for being added to the list of projects to have money taken
from are at the Portsmouth Naval shipyard. It is one of the many
installations that faces potential cuts in funding if this emergency
declaration is executed. Congress has already approved funding for
several projects at the shipyard and at our public shipyards around the
country that support critical submarine maintenance, and any disruption
to funding of those projects could lead to costly delays and to a
reduction in military readiness because they would derail carefully
laid plans to upgrade aging infrastructure. Delays in projects that
support the shipyard's mission threaten to exacerbate the Navy's
already high demand for submarine maintenance and the projected
submarine shortfall in the coming years.
I recently sent a letter to President Trump and spoke with the
leaders at DOD urging them to protect these important projects at the
shipyard, but the only way to ensure that these projects move forward
is to terminate the emergency declaration.
In addition to projects at the shipyard, the emergency declaration
could also impact New Hampshire's National Guard readiness centers,
which are in desperate need of modernization. A 2014 report from the
Army National Guard ranked the condition of New Hampshire's National
Guard facilities 51 out of 54 States and territories.
Our National Guard has been forced to shoulder an enormous burden
since the wars in Iraq and Afghanistan. Servicemembers have often faced
multiple deployments, and they still had to respond to national
disasters at home and to other personal crises. The New Hampshire
National Guard can't afford further delays to the readiness center
improvements because of President Trump's emergency declaration.
These military construction projects in New Hampshire are at risk
because President Trump wants to score political points by building a
wall rather than focusing on the border security proposals that
actually work. I was disappointed to hear my colleague from Texas
accusing Democrats of not supporting border security because, in fact,
virtually everyone here has supported significant border security
proposals in the past, including targeted fencing in vulnerable areas
where we know fencing or barriers can make a difference. We have
supported more Border Patrol agents, better surveillance and screening
technologies, and increased security at the ports of entry.
Coming from a State where we have a huge challenge with the opioid
epidemic, where we understand the impact of having cocaine and fentanyl
and other drugs come across our border, I also know the best way to
interdict those drugs is through the ports of entry. That is where most
of them are coming from.
In a recent bipartisan budget agreement Congress provided, I
supported, along with the majority of this Senate, nearly $15 billion
for Customs and Border Protection, including $1.3 billion for physical
infrastructure in vulnerable areas along the southern border. The
reality at our borders is, the vast majority of drugs and contraband
come through the ports of entry. They don't come through the areas
between the ports of entry.
In the past 2 months alone, law enforcement officials have made the
largest cocaine seizure in the past 25 years at Newark, NJ, and the
largest fentanyl seizure ever at any port of entry in the U.S. in
Arizona. Despite this reality, President Trump insists on having our
military bear the burden to fulfill his campaign promise.
His insistence that the situation at the border requires the military
to pay for his wall runs counter to what I have heard in the Senate
Armed Services Committee from our military leaders. In a recent Senate
Armed Services Committee hearing, General O'Shaughnessy, Commander of
U.S. Northern Command, testified that the threats to our Nation on our
southern border are not military in nature, and he has never advised
the President that a border wall is necessary to support his mission.
Just this morning, we heard testimony at our SASC hearing with
Secretary Shanahan and Joint Chiefs Chairman Dunford that we have more
troops on our southern border with Mexico than we have in all of
Europe, on Europe's eastern border with Russia, and we have almost as
many on our southern border, and one-quarter as many as we have on the
DMZ on the border with North Korea. By any measure, North Korea and
Russia pose a greater threat to our national security than Mexico. It
is a policy that does not make sense. Yet we have more troops on the
southern border now than we do in Eastern Europe and in Syria.
The fact is, the men and women at the Portsmouth Naval Shipyard and
at the New Hampshire National Guard
[[Page S1870]]
and men and women serving in our military across this country should
not be forced to sacrifice readiness for an unnecessary border wall
that takes funding away from projects that this Congress has already
approved that are going forward.
I urge my colleagues on both sides of the aisle to protect Congress's
constitutional authority and defend our national security by supporting
the resolution to terminate President Trump's emergency declaration.
Thank you.
I yield the floor.
The PRESIDING OFFICER. The majority leader.
Order of Business
Mr. McCONNELL. Madam President, I ask unanimous consent that there be
90 minutes of debate, equally divided, remaining on the joint
resolution.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The PRESIDING OFFICER. The Senator from Rhode Island.
Liberian-Americans
Mr. REED. Madam President, I come to the floor today to plead on
behalf of Liberians who face the immediate threat of deportation from
the only home many of them have known.
I have come to the floor many times over the last two decades to
highlight the plight of Liberians, who, after fleeing civil wars,
political turmoil, economic instability, and deadly disease, were given
the ability to stay in the United States and work, pay taxes, and
contribute to our country and local communities by successive
Republican and Democratic administrations--that is, until last year,
when this President terminated deferred enforced departures, DED, the
most recent status offered to Liberians. I urge the President to
reconsider his decision and reinstate DED by March 31 to save Liberians
from being forced to leave their jobs, their families, and their homes.
Moreover, the Liberian community deserves a long-term solution. That
is why I also urge my colleagues to take up S. 456, the Liberian
Refugee Immigration Fairness Act, to end the perpetual limbo for
Liberians here in the United States and ensure our national security
interest in fostering Liberia's recovery. This bill provides legal
status and a pathway to citizenship for qualifying Liberians. I have
introduced similar legislation continuously since coming to the Senate
and have worked to include its key objectives in comprehensive
immigration reform bills that passed the Senate in years gone by, only
to die in the House of Representatives.
I have been joined in this mission by countless advocates and many
colleagues, including my Rhode Island colleague, Senator Sheldon
Whitehouse, as well as Senators Klobuchar, Smith, Durbin, Cardin, Van
Hollen, and others. I thank them for their support and urge the rest of
our colleagues to join us in supporting the Liberians who are hard at
work enriching our communities.
Today, I met with several Liberians from Rhode Island. I hope my
colleagues similarly meet with Liberians from their States so they can
hear firsthand about what would be lost if these members of our
communities are deported.
Beginning with its founding in the early 19th century by freed
American slaves, our country has had deep ties with Liberia. It goes
without saying that when Liberians faced tragedy, with their country
engulfed by a civil war that would last from 1989 to 1997, claiming the
lives of thousands, displacing more than half the country's population,
halting food production, collapsing the economy, and destroying its
infrastructure, that our country would open its arms.
By 1991, an estimated 14,000 Liberians had fled to the United States.
In March of that year, the Attorney General under President Bush
granted them the opportunity to register for temporary protected
status, TPS.
Before the prospects for a safe return could be realized, Liberia
plunged into a second civil war from 1999 to 2003. This horrific
conflict ended with the departure from power of former President
Charles Taylor, who is currently serving a 50-year prison sentence by
the Special Court for Sierra Leone for war crimes.
In 2014, still poverty-stricken and struggling to recover, Liberia
found itself plunged into an extensive outbreak of the Ebola virus.
Ebola killed an estimated nearly 5,000 of the over 10,000 persons in
Liberia who contracted the disease. The outbreak overwhelmed the
country's already fragile healthcare system, infrastructure, and
economy while exacerbating social tensions.
Throughout these tragic conflicts and challenges, Liberians who fled
to the United States have been granted the ability to stay here either
under TPS or DED while conditions remain unstable in Liberia. In order
to participate, these Liberians had to submit to vigorous vetting, pay
hefty fees, and stay out of trouble with the law.
While unable to access earned benefits available to American
citizens, these statuses at least allowed Liberians to apply for work
authorizations so they could join the workforce or start their own
businesses, pay taxes, and raise families. Once again, they work, but
they do not earn any of the benefits other Americans earn.
They have found themselves and their communities have found them to
be some of the most responsible, hard-working, and decent people we see
throughout our communities. Many of these individuals have American
citizen children who attend American schools and serve in our military.
These children have known no home other than America. They are
Americans, and it would be a tragedy if their parents and grandparents
were suddenly taken away, physically taken away and sent back to
Liberia, because for all of them, since the early 1990s, America has
been their home.
In the years since 1989, Liberians have become our neighbors and
friends, pastors, soldiers, police officers, health workers, and many
more professions. They are an important community that contributes a
great deal of diversity and prosperity in States like Rhode Island,
Minnesota, Idaho, and other places around the country. It would do our
country no good and would be simply cruel to uproot these Liberians
from their families, employers, and communities.
Moreover, deporting these Liberians would be contrary to the national
interest of the United States and destabilizing to the already fragile
West African region. We must pursue all possible efforts to ensure
regional stability by fostering Liberia's continuous post-war and post-
Ebola crisis recovery. We must also continue to build on our country's
substantial foreign policy investments over the past years, including
U.S. bilateral assistance and peacekeeping investments in the region.
Given Liberia's precarious condition and lack of resources, the
sudden deportation of as many as 4,500 affected people to Liberia would
overburden the country's limited infrastructure and ability to maintain
peace and deliver essential services, all the while sabotaging the
hopes for progress following the country's first democratic transition
of power in years that occurred last year. Deporting this population
would also cause Liberia economic harm by curtailing crucial private
sector investment and socioeconomic assistance that Liberians in
America have long provided in the form of remittances to their
relatives in Liberia.
I again plead with the Trump administration to reinstate DED. Please
don't separate and uproot hundreds of Liberian-American families from
their jobs and homes and force them to return to a country that is
unrecognizable for many of them. These Liberians are Americans in every
sense of the word except for a piece of paper.
While discussions continue about the best path forward for Dreamers
and TPS, Liberians cannot wait another month or another year. They have
just over 2 weeks before their time may be up.
In my view, with each year that has passed since the first of these
Liberians arrived, the case has grown stronger that they should have
the option to adjust their status and remain in the communities where
they have made their homes and raised their families.
We have long since reached the point where simple justice requires
that Congress extend this option to these Liberians. So in addition to
urging President Trump to reinstate DED, I also urge my colleagues to
take up and pass the Liberian Refugee Immigration
[[Page S1871]]
Fairness Act and put an end to uncertainty for this population after
decades of displacement.
I yield the floor.
The PRESIDING OFFICER. The Senator from Virginia.
H.J. Res. 46
Mr. KAINE. Madam President, I rise, as colleagues of mine have
earlier today, to talk about the President's emergency declaration.
Before I do, I will just say that this declaration deals with budgetary
matters at the end of the day, whether the President should be able to
take $6.1 billion this year and possibly more in future years from the
Pentagon's budget to deal with a nonbudgetary emergency.
I want to acknowledge that today is the last day of my budget
staffer, my right hand on all Federal budget matters for the last 6\1/
2\ years, Ron Storhaug. I am going to miss him. I will start there. I
will miss Ron. He has done such a good job. My only good feeling is
that he is staying right here in the Senate and moving to work with the
senior Senator from Maryland.
I want to talk about the declaration and urge my colleagues to vote
to reject what I believe is the President's unwise use of his power to
raid the Pentagon's budget.
Is there an emergency at the border? There is a serious issue at the
border--a whole series of serious issues, negative but also positive.
Trade happens across all the borders of the country. But all the
testimony before the Armed Services Committee, where I sit, says there
is no military emergency at the border. We heard testimony from General
O'Shaughnessy, who is the commander of what we call NORTHCOM--
everything in the Americas north of Mexico's southern border. General
O'Shaughnessy said there is no military emergency at the border between
the United States and Mexico. We heard the same testimony this morning
from Defense Secretary Shanahan and the head of the Joint Chiefs of
Staff, General Dunford. So there is no military emergency at the
border.
Compared to other significant challenges we deal with--70,000 drug
overdose deaths a year, climate change, 40,000 deaths a year from gun
violence, including both homicides and suicides, homelessness, lack of
medical care, military housing--it is hard to see why the border issue
would be an emergency that would rise to the top of any list. I can
certainly assert this: There are much higher priorities for Virginians.
While we could argue about whether it is an emergency, one thing I
think is pretty clear--it is inarguably a Presidential power grab. The
President is unhappy with congressional appropriations for the border,
so he is declaring an emergency to take $6.1 billion this year and
possibly more in future years from the Pentagon's budget. This will
establish a very dangerous precedent.
First, let's focus on the President's being unhappy. For all of this
President's tenure up until January 3, he had two Republican Houses.
There were two Republican Houses and a Republican President. Why should
he be unhappy with the budget? He would have had the ability to
convince Republican majorities to do what he wanted, but he could not.
So he is unhappy with what Congress, the appropriating branch, has put
on the table. We put billions of dollars on the table for the border,
but he is unhappy with it, and so now he is going to declare an
emergency.
It raises two important questions. Can a President just declare an
emergency every time he is unhappy that Congress doesn't accept his
budgetary proposals? Second, can the President use the declaration of a
nonmilitary emergency to just tap a spigot into the Pentagon's budget?
That is exactly what President Trump is trying to do in this case.
The President has declared an emergency that all agree is a
nonmilitary emergency. The President said: I want to take $6.1 billion
from the Pentagon's budget to deal with this emergency.
He wants to take $3.6 billion from military construction. Military
construction are the funds we use to build facilities on our military
bases across the United States and across the world or to rebuild
facilities, like the airbase at Tyndall or the big sections of Camp
Lejeune that were hit in hurricanes last year. That is what the MILCON
budget is supposed to do.
This morning, I toured Fort Belvoir to visit with Army families
living at Fort Belvoir in Fairfax County, VA. They shared with me
atrocious stories about the condition of the housing they are living
in. These are atrocious stories of rodent infestation, black mold,
lead, and asbestos. I drove by one military house at Fort Belvoir that
had a big warning sign on the door: ``Poison.'' You could not enter it
because of efforts at asbestos and lead remediation.
The families told me about the poor physical conditions of their
properties. They told me about the fact that they couldn't get a
response when they were trying to get help. Then they told me,
tragically, about the illnesses of their children, hospitalizations,
and having to move out of their homes and apartments. One mother of a
10-year-old talked about the fact that her 10-year-old daughter,
because of mold in her military housing unit, missed 45 days of school
in the last school year. Her daughter had to be absent for a quarter of
the school year because of the poor physical conditions of military
housing.
The MILCON budget is there to deal with issues like these. Yet the
President wants to take $3.6 billion out of the MILCON budget. The
President wants to take $2.5 billion out of the drug-interdiction
budget within the Department of Defense. Press reports suggest that
account only has about $85 million available, so what they would need
to do is cannibalize other accounts to fill up that account to $2.5
billion to then take out. Those are the important funds--military
construction and drug interdiction--the President is proposing to raid.
I think it is important to notice this: The President's emergency
declaration is not just about tapping the budget this year for $6.1
billion. Earlier today, in an Armed Services hearing, I asked Secretary
Shanahan: Doesn't this emergency declaration last until the President
declares it is over? If we don't rebut the emergency, it will not just
be fiscal year 2019; it will be fiscal year 2020 or 2021 and beyond. It
will enable the President to tap a spigot into the MILCON budget and
draw out moneys this year, next year, and in future years. So it is
$6.1 billion that he is asking for this year, but unless Congress
asserts its article I power to say, no, we are the appropriators, we
will basically be allowing the President to tap into this fund in
perpetuity, thereby affecting important military construction
priorities that would be good for the military families and our
Nation's defense.
Which military construction projects might be compromised by the
President's use of this $6.1 billion?
When the President declared the emergency, I wrote a letter to
Secretary Shanahan on February 15 and asked: Can you give us a list of
the projects that will be compromised by this $6.1 billion raid on the
Pentagon's budget? I have not received a response. That was 27 days
ago.
This morning, before the committee, Secretary Shanahan was asked: Why
haven't we received a list? If the President wants to take $6.1 billion
out of the Pentagon's budget, give us a list of the potential projects
that could be affected.
I wrote a letter on the 15th, and staffers have been reaching out to
the Pentagon. If you do not know precisely the projects, give us the
universe--all unobligated MILCON projects on your priority list that
could possibly be affected. Today, after not responding to the
requests, Secretary Shanahan said that he will send us a list at the
end of the day: I will send you a list, basically, after you vote this
afternoon.
The vote that we will be casting this afternoon is about whether the
President should be able to raid the Pentagon's budget for $6.1
billion. For a month, we have been asking what projects might be
affected, and they are now proposing to give us an answer to the
question after the vote. They have had the list since the very day we
asked them. They keep a list every day about unobligated MILCON
projects, but the service secretaries are not allowed to share those
lists with Congress until the Secretary of Defense allows them to, and
he is going to allow us to see it today.
Everybody is voting to cannibalize the Pentagon's budget to the tune
of $6.1 billion. All of the Senators should
[[Page S1872]]
be interested in what projects might be affected in their own States
that are necessary to the Nation's defense before they vote to give the
President this power.
In conclusion, I hope, today, we will stand up against the
President's power grab. We shouldn't let the President tap a spigot
into the Pentagon's budget to deal with an emergency that all have
agreed is a nonmilitary emergency. We shouldn't let him tap a spigot
that is not just for this budgetary year but for future fiscal years,
as well, which is the effect of the vote today.
We are the article I branch, and under that section of the
Constitution, we set the spending priorities. Because he is unhappy
with our work product, the President should not be able to overturn the
spending priorities that we have established in our appropriations
bills and raid the Pentagon's budget without telling us where the
moneys will come from.
I yield the floor.
The PRESIDING OFFICER (Mr. Cruz). The Senator from Montana.
Mr. TESTER. Mr. President, I rise to talk a little bit about the
emergency declaration by the President. It is a bad idea. I think
everybody in this body knows it is a bad idea, and we will see how many
people will vote to override that bad idea. It is a bad idea for a
number of reasons.
The President says it is for this country's safety, but he is robbing
from our military to build a wall on the southern border. Yet, I might
add, most of the money that we allocated in the last fiscal year is
still there--$1.3 billion--plus the $1.375 billion that was authorized
by the conference committee, made up of a group of Democrats and
Republicans from the House and the Senate, which means it was passed by
both bodies. It was money that he received but to which he said ``I
don't like it'' and declared an emergency declaration.
Look, Montana is no stranger to military service. We are home to the
second-most veterans per capita of any State in the country. Every time
our Nation is in need, Montanans step up to the plate and answer the
call to serve. That is why, today, I rise to fight back against the
President's declaration, for it will be shortchanging our troops in
favor of a campaign promise to build a wall that he said Mexico would
pay for.
The President's plan to raid our military resources would directly
hurt Montana's military community and its men and women in uniform. The
heart of the Air Force's Global Strike Command is located in Great
Falls, MT, at Malmstrom Air Force Base. The 341st Missile Wing at
Malmstrom is a critical component of our Nation's nuclear triad. It is
our great deterrent against adversaries who would do us harm. As
President Kennedy said, it is our ace in the hole.
Over the past few years, I have been fighting to secure the military
construction dollars on the Appropriations Committee to meet the needs
of the Malmstrom Air Force Base. I led a bipartisan effort to deliver
more than $19 million to construct a new Tactical Response Force Alert
Facility. That facility was a top priority for Malmstrom because the
current facility is old, laden with asbestos and lead-based paint, and
this has complicated efforts to secure the base's missile sites.
I also helped to secure some $14.6 million for the construction of a
missile maintenance dispatch facility. This facility will allow the
base to more properly and efficiently store critical components and
equipment for the missile field and to retrofit its hangar so we can
ultimately house the replacement fleet for its Vietnam-era Hueys, which
should be replaced in the next couple of years. Unfortunately, the
construction of these facilities and of many others around the country
is at risk because of the President's decision.
More alarmingly, Malmstrom is in critical need of a weapons
generation facility, and I have been fighting for years to ensure that
this project is included among the Air Force's top military
construction priorities. Just yesterday, the Secretary of the Air Force
confirmed that the funding for the facility has been included in the
fiscal year 2020 Air Force budget request. This investment represents a
significant step forward for Malmstrom Air Force Base, for the Air
Force, and for our national security. It is important because this is
where ICBM warheads are maintained and stored.
As a result of the deterioration of this facility, airmen and
missileers must confront numerous safety and security challenges while
carrying out their missions every day. Yet now we have to tell them
that this critical project, which the Air Force has said it desperately
needs and which it does desperately need, could very well get kicked
down the road and down the list of priorities because the President
would rather spend billions of the military construction money on the
construction of his wall.
The same is true for other critical infrastructure investments at
Malmstrom, including a new security forces compound, but the President
doesn't care. He is more interested in robbing taxpayer funds to build
an unnecessary wall on the southern border, but Congress has rejected
the President's request on a bipartisan basis. His defiance of that
rejection comes at the expense of my State's defense installations.
Great Falls is also home to the Montana Air National Guard. My older
brother was in the Air Guard for 35 years, and I have seen their work
up close. Since we entered the Middle East conflict 17 years ago, this
country has used the Guard like never before. They have asked a lot of
our citizen soldiers and airmen, and they have always delivered whether
that be when they were deploying to war, fighting against wildfires, or
saving families from natural disasters.
In Montana, they have asked for little in return. They have asked for
the construction of a new aircraft apron to park and store the Guard's
C-130 fleet. Once again, we got to work, and we secured the money--$9
million--to make sure that our C-130s would stay in good shape for
years to come. Max Baucus and I fought hard to bring those C-130s to
Montana, which is why I am so outraged that the President's emergency
declaration puts this funding at risk. I know that nobody in this body
takes the decision of sending young men and women to war lightly, but
when those difficult decisions are made, we had better deploy them with
the best and the safest equipment.
The debate today is clear: A vote against the President's disaster
declaration is a vote to protect our coequal branches of government,
our system of checks and balances, and our Constitution. A vote for the
President's power grab is a vote for Federal overreach and is a
violation of our oath of office.
I hope my colleagues who vote for this plan are on the first plane
back home to explain to their constituents why they are shirking their
basic duties. I hope they explain to their communities--and there are
many like Great Falls, MT--why they are ripping those investments out
of their towns and out of our military. I hope they explain to our
future leaders why it is OK to follow the Constitution only when it is
expedient.
This disaster declaration undermines the bipartisan work that the
Republicans and Democrats have done to rebuild our military. It sets a
dangerous precedent that, no doubt, will be abused by future
Presidents, and everybody in this body knows that.
We have an option here. We have the ability to stand with our troops
and to stand with the Constitution and reject this declaration. It is
critically important if we are going to have a strong military. I think
we decided in the last Congress to make investments into our military
that were much needed, and now the President is pulling those dollars
out. It is nothing short of ridiculous.
I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio.
GM Closures
Mr. BROWN. Mr. President, I concur with the comments of my friend
from Montana. I know what this President wants to potentially do to the
Wright-Patterson Air Force Base and to the air bases in Springfield, in
my hometown of Mansfield, in Youngstown, and in Toledo in my State and
so much more.
Last week, we got yet another clear illustration of whose side
President Trump is on. All week, we got news of favor after favor from
the Trump administration in what it is doing for Wall Street. The White
House looks
[[Page S1873]]
like a retreat for Wall Street executives except on the days it looks
like a retreat for drug company executives.
Wall Street banks have complained to the President about the Volcker
rule. That is the rule that stops the big banks from taking big risks
with American families' money. Wall Street didn't like it, but it had
passed this Congress a decade ago. The rules were being written far too
slowly because of Wall Street's influence even during the Obama years,
but because Wall Street didn't like it, the Trump administration agreed
to rewrite them. The Wall Street banks complained that even the rewrite
was not weak enough, so the administration reportedly is going to water
it down even further.
Secretary Mnuchin, the Secretary of the Treasury--another Wall Street
guy who was appointed by this President--announced he is going to go
easier on shadow banks, and the Fed announced it would make it easier
for big banks to pass the annual stress test. It is like this body and
Senator McConnell, who is down the hall, have forgotten what happened
10 years ago. It is this collective amnesia that has worked its virus
through this body and through the administration so that people forget
what happened 10 years ago with regard to our economy.
My wife and I live in Cleveland, OH--ZIP Code 44105. In the first
half of 2007, that ZIP Code had more foreclosures than any ZIP Code in
the United States. I see what happens when people lose their homes. I
think about what happens to families who have to explain it to their
children, who have to give away their pets, who have to move to new
school districts--all the things that happen to families when their
homes are foreclosed on or when they are evicted from their apartments.
Yet none of these executives seem to mind. None of these executives
have to have those conversations. Nobody in the Trump administration
has to have those conversations with one's kids.
The Trump administration is weakening the stress test. It is
weakening some of the capital. It is simply doing Wall Street's bidding
over and over--and that was just last week. Of course, we know that
comes after 2 years of this President's and this Congress's doing Wall
Street's bidding.
To me, the one what was even more personal was how this
administration decided to weaken the overtime rule. Here is how it
works. If somebody is making $40,000 a year and is working as a night
manager at a restaurant, say, or at any kind of job in which one may
manage a few people and is making $35,000 or $40,000 or $45,000 a year,
if the top people of the company give this gentleman or gentlewoman who
is doing this job the title of management, then they don't have to pay
him or her overtime.
They can work them 45, they can work them 50, they can work them 60
hours a week and pay them not a dime of overtime--nothing. They get a
salary for 40 hours.
So you take a worker, you pay that worker $45,000 a year, $40,000 a
year, the owners of the company classify them as management, and they
can refuse to pay them for the extra 10 or 15 hours. That is 10 or 15
hours without pay or it is 10 or 15 hours away from family, away from
raising your kids, and the administration, of course, sided with the
companies. Of course, they sided with Wall Street. Of course, they
betrayed workers. They never ever side with workers.
Look at Youngstown, OH, right now. This President stood by while
General Motors closed the Chevy Cruze plant. It had been there 53
years--Lordstown, OH, a valley of about 400,000 people. This is 5,000
jobs. There are probably another 4,000 to 5,000 jobs for people who
worked in the supply chain and made components that go into the Chevy
Cruze. I asked the President personally--first, he didn't even know
about the plant closing when I talked to him, even though by that time
they had laid off about half of the workers. Then I asked him face-to-
face, and I asked him on the phone to actually call the CEO of GM to
make an appeal to say: Instead of using your huge tax cut that you got
from the White House to build more jobs overseas and to do stock
buybacks so the executives are getting richer, how about investing in
this General Motors plant, how about retooling, which this company has
done many times in the past?
I remember one of the best days, other than the birth of six of my
grandchildren during my last term in the Senate, during that several
years--I remember the best day of that last term was when President
Obama, Secretary of Labor Perez, and I stood together in Columbus, OH,
at Jeni's ice cream, and we announced that the Obama administration was
going to update that salary threshold on the overtime rule. If you work
extra hours, you get extra pay, you get time and a half under the law--
under the law the way that President Obama did it.
The Obama rule would have meant that more than 4 million Americans--
130,000 people just in my State, 130,000 people, if they work 10 hours,
they get hundreds of dollars in overtime pay. If they are working 50
hours instead of 40, they literally would get--depending on their wage,
of course--at least another $100 in their pay.
Now, because of Trump and the Secretary of Labor in this
administration--first because of some judges and now the President--
those workers never got that raise.
Attorneys general around the country, Republican, far-right attorneys
general, including one in the Presiding Officer's State, are always
glad to do the bidding of their corporate sponsors. They are always
glad to do the bidding of billionaires. They are always glad to do the
bidding of the richest 1 percent in this country. They blocked it.
Now President Trump has come up with a new rule that leaves most of
those workers behind.
Again, these aren't rich executives who are working. I am sure the
Presiding Officer, the Senator from Texas, most of us work well over 40
hours in these jobs. We get paid a salary; it is a good salary. We
shouldn't get paid overtime; neither should a corporate lawyer who is
working more than 40 hours overtime, and neither should an executive
nor should a doctor who works more than 40 hours get overtime. But
these are workers who are making $30,000 and $35,000 and $40,000 a
year, and you classify them as management, so you refuse to pay them
overtime. That is what this rule is about. It means that millions of
ordinary workers are not getting the pay they have earned.
As if the richest 1 percent aren't doing well enough without this
rule, President Trump again--President Trump again--betrayed workers.
Again he stood with the billionaires. Again he stood with the largest
corporations that ship jobs overseas.
It comes down to whose side you are on. Are you on Wall Street's
side? Are you on the side of Senator McConnell, who responds to every
special interest in this country that wants something from this Senate?
Are you on their side or are you going to be on the side of the
American workers?
This President came to Youngstown. He promised to fight for American
workers. He breaks that promise damn near every single day. He breaks
it over and over and over.
If you love this country, you fight for the people who make it work.
I wish President Trump would understand that.
I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio.
H.J. Res. 46
Mr. PORTMAN. Mr. President, I am here to talk about the vote that we
will take later today on this floor regarding the President's national
emergency declaration.
From the outset of this process, I have had two objectives. One is to
support the President on the crisis at the border. I believe his plan
to address that crisis is a good one, and we should support it. But,
second is to do it in the right way, without setting a dangerous new
precedent counter to a fundamental constitutional principle, without
tying up the needed funds for the border in the courts, and without
taking funds away from important military construction projects for our
troops.
Unfortunately, despite a sincere effort by the administration as
recently as this morning to try to work with me and other colleagues,
including the Presiding Officer, we were not able to agree on a path
forward that addresses those concerns that I just outlined.
I am going to lay out in a minute how I think we can better achieve
the President's goals of strengthening our border security without
invoking the national emergency and the funding he
[[Page S1874]]
seeks through that national emergency.
First, let me repeat what I have said on this floor many times and
said consistently: I do believe we have a crisis at the border--a
humanitarian crisis, a trafficking crisis, a drug crisis. According to
Customs and Border Protection, in February--last month--76,000 illegal
immigrants arrived at our southern border. That is an average of about
2,000 every day. Since October of last year, we have apprehended more
than 268,000 people at the border. That is about a 100-percent increase
over the same period last year. We have also seen a 300-percent
increase in families arriving at the border compared to this time last
year. By the way, the vast majority of those are from three countries
in Central America.
This is a humanitarian crisis. The journey to the United States from
these so-called Northern Triangle countries is incredibly dangerous,
especially for women and for children. They face violence from gangs
and traffickers and hunger and dehydration in the rough terrain. Many
of them arrive at our border traumatized, hurt, sick, and often we
don't have the resources to provide for those needs.
There is also a growing human trafficking crisis. Our lack of border
security allows these smugglers--human smugglers--to move across the
border unchecked. Increasingly, they are taking advantage of these
flows of individuals to traffic women and children.
In particular, I will say the Border Patrol resources are spread thin
trying to monitor these areas that do not have barriers.
Third, this is a drug crisis. The Drug Enforcement Agency has said
that the southwest border ``remains the primary entry point for heroin
into the United States.'' That is not a debatable point. I am told that
with regard to Ohio, where we have been devastated by the opioid
epidemic, over 90 percent of the heroin is coming across the southern
border.
Fentanyl, the deadliest drug of all, which comes primarily from China
and primarily through the U.S. mail system--50 times more powerful than
heroin--is increasingly coming across the southern border too.
Yesterday I learned from Customs and Border Protection that fentanyl
seizures along the border between the ports of entry have increased by
400 percent between 2016 and 2018.
As we are finally beginning to make progress on the opioid crisis in
my home State of Ohio and around the country, finally reducing the
number of heroin and other opioid overdose deaths for the first time in
8 years, we are seeing a reduction in those deaths, but crystal meth
and the devastation it causes is coming back--coming back with a
vengeance. It is more pure than ever, more powerful than ever, and it
is coming from Mexico.
Some of you may remember in your own communities the issue of crystal
meth labs being in people's houses and the environmental damage it
caused and the crystal meth being cooked. That is not happening much
anymore. Why? Because the pure crystal meth from Mexico is so much more
powerful and less expensive; it is cheap.
Law enforcement tells me that on the streets of Columbus, OH, pure
crystal meth is now plentiful and less expensive than marijuana--and
far more dangerous. Where is this coming from? It is coming from
Mexico.
Even with limited resources, in fiscal year 2018, Customs and Border
Protection seized almost a half million pounds of marijuana and 11,000
pounds of methamphetamine between ports of entry. At the ports of
entry, they seized over 1,700 pounds of fentanyl--by the way, that is
enough to kill about 3 billion people--1,700 pounds of fentanyl,
three flecks of which can kill you, 56,000 pounds of meth, and nearly
52,000 pounds of cocaine.
Frankly, that is the tip of the iceberg. Most of it is getting
through. They are checking only a small percentage of shipments,
meaning the vast majority of drugs are coming across our borders
undetected. We need to do more.
There is no question we need stronger border security. Again, I
support the plan the President has outlined, including the $5.7 billion
the President has requested for walls and other barriers.
That $5.7 billion number, by the way, wasn't just picked out of thin
air. It funds the top 10 priorities of the Customs and Border
Protection Border Security Improvement Plan. The experts have given us
a plan, and the President's $5.7 billion simply funds what the experts
have said.
This plan, by the way, the expert's border security plan, has been
embraced by this Congress in the last two appropriations bills. They
pointed to that plan and said: This is the path forward. These are the
experts. It is not controversial.
By the way, the experts have recommended not that we build a wall
from sea to shining sea--it has been mischaracterized as that--but 234
miles of barriers, walls, and other fencing at places where people
cross the border most frequently, primarily in the State of Texas,
primarily in the urban areas--places where it will make the most
difference.
Funding for these types of barriers has been included in the budget
requests from previous administrations, of course. Previous
administrations have built hundreds of miles of fencing--over 500
miles.
It has also been included in appropriations bills passed by Congress
during the last two appropriation cycles by both Republicans and
Democrats. Why is it that this administration can't build the barriers
that other administrations have and that Congress in the past has
supported?
Of course it is not just about more physical barriers, and the
President's plan also recognizes that. It calls for more Border Patrol
agents, more technology, more surveillance, more drones, more cameras,
more screening at our ports of entry, more technology to stop this
illegal flow of drugs. That is also a significant part of the plan.
But erecting more barriers and fencing in key areas along the border
will help stem the tide. It will ease the burden on our Border Security
personnel and allow them to focus their resources more effectively.
It is time to listen to the experts and give them what they need to
carry out their important mission, but we have to do that in the right
way.
As we all learned in high school, our government has a system of
checks and balances. It gives some powers to the President; it gives
some powers to Congress. Our Constitution explicitly gives the U.S.
Congress what is called the power of the purse.
Congress, not the President, has the sole authority to determine how
to spend taxpayer money, and that is appropriate. After all, we are
here to represent the people. We are most accountable to the taxpayers.
Once we appropriate the money for a specific purpose, then it is the
President and the executive branch that are responsible for
administering those programs.
We had our spending fight here in Congress. I thought we should give
the President the full amount of money he requested for barriers, and I
voted that way. At the end of the day, Congress decided to give him
only some, not all, of the funds he requested.
Under current law and current congressional approval and authorities,
without declaring a national emergency, President Trump can actually
access additional funds that get him to the $5.7 billion he requested.
As the Wall Street Journal said in a recent editorial opposing a
national emergency, ``The President doesn't need to invoke a national
emergency to build his wall along the southern border.''
Declaring a national emergency to access different funds sets a
dangerous new precedent. The use of national emergency powers to
circumvent Congress's explicit decision on funding is unprecedented. No
President has ever used what is called the National Emergencies Act in
this way. As a result, it opens the door for future Presidents to
implement just about any policy they want and to take funding from
other areas Congress has already decided on without Congress's
approval.
Once a President declares an emergency, he or she has access to a lot
of power. Some would say nearly unlimited power. A future President
could seize industries or could control means of communication. Think
of the internet. A future President may well say that climate change is
a national emergency and use emergency authorities to implement the
Green New Deal. By the way, according to a new study by Douglas Holtz-
Eakin at the American Action Forum, the proposed policies in the Green
New Deal would cost
[[Page S1875]]
between $51 trillion and $93 trillion over the next 10 years when added
up together. Obviously, that is not sustainable. It is an astounding
price tag. In fact, as Senator Alexander said on the floor earlier
today, future Presidents could actually use this emergency authority to
tear down the very wall we are now constructing, and some Democrats
running for President have said that is what they intend to do. That is
what they want to do.
The President is using the National Emergencies Act to take funds
away from a particular area of spending. It is called military
construction funds. Only twice before have Presidents declared a
national emergency in order to transfer military construction funds
away from congressionally designated projects into other priorities. In
both of those situations, we were at war, and the Secretary of Defense
transferred the funds to support the war effort, and Congress did not
object. Although there is a crisis at our southern border, we are not
in wartime, and there are funds available to address border security.
The President wants to do more to address the crisis at the border,
and I do, too, and he can do more. The President has available to him
enough funds, right now, to begin building all the barriers he has
requested without resorting to national emergency funds. I support his
using those funds to get to the full $5.7 billion he requested for
barriers on the southern border.
Here is how we could access it without using the national emergency.
First would be the $1.375 billion appropriated by this Congress for the
barriers. By the way, that is the most that has ever been appropriated
in a fiscal year, ever, for the purpose of barriers. Second, he can
access, as he intends to do, $601 million from the Treasury Forfeiture
Fund. He could do that without a national emergency. Third, he could
access funding through the DOD counter-drug account. He has said that
he would like to access about $2.5 billion from that account, but he
could actually access, under our laws that we have passed here--and we
have given him authority to access--up to $4 billion. This adds up, as
we can see, to over $5.7 billion--almost $6 billion--which is at the
President's disposal without moving to the national emergency that he
has invoked. My hope is that the President will take this approach.
I think using those funds is a better way to accomplish our border
security goals. Precisely because the President does not need to
declare a national emergency, these funds are far more certain. The
$3.6 billion the President takes from the military construction
projects is uncertain because these funds are likely to be tied up in
constitutional litigation for months, probably years. By the way, the
President has rightly acknowledged that.
Under the National Emergencies Act, Congress has given the President
flexibility to address significant threats to our Nation's well-being,
and we want him to have that flexibility. It was critical for President
Bush to act quickly and decisively in the days after the 9/11 attacks.
But short of that type of situation, it is imperative for the President
to honor Congress's constitutional role to make policy and appropriate
money. A national emergency declaration is a tool to be used cautiously
and sparingly. That is why I cosponsored legislation, authored by
Senator Mike Lee, to amend the National Emergencies Act to ensure that
Congress does have more control over these decisions in the future.
So in my view, the best resolution here is for the President to use
that nearly $6 billion in funding that he has at his disposal to
implement his plan, and, then, ask Congress for additional funding
during the next appropriations cycle, which, by the way, begins on
October 1 of this year.
This approach, again, has three distinct advantages. One, it would
not set the dangerous precedent we discussed today. Second, the funds
could actually get to the border because they will not be tied up in
litigation. Third, it would fully protect important military
construction projects in Ohio and around the country--including, by the
way, funding for the National Air and Space Intelligence Center, or
NASIC, at the Wright-Patterson Air Force Base; an automated,
multipurpose machine gun range at Camp James A. Garfield; a fire
station replacement at Mansfield Lahm Airport; a small arms range at
Rickenbacker International Airport, and a main gate relocation project
at Youngstown Air Reserve Station. All of those are things in the
current fiscal year Military Construction appropriations bill that
benefit Ohio. I am a strong supporter and advocate for Ohio's military
facilities and our research institutions, and I will continue to work
to ensure that our key military construction projects at these
strategic facilities can continue to move forward.
I have worked on both ends of Pennsylvania Avenue. I have had the
honor of being a Senator and a Congressman on this side, and I have
worked for two White Houses. In fact, I was Associate Counsel to
President Bush 41 in his White House Counsel's office. I know how hard
it can be for the executive branch, the President, and Congress to find
the balance that our Founders intended between the executive branch and
the legislative branch, but our Founders drew a clear line on at least
one thing: Congress, closest to the people, would have the power of the
purse.
When President Obama bypassed Congress and took executive action to
create new immigration policy back in 2012, I spoke out. I criticized
him because of the constitutionality issue. I said I agreed with
President Obama that our immigration system was--and, by the way, still
is--broken. I agreed we needed to work together to fix it, but, I said
that it doesn't mean that a President can ignore Congress, substitute
his own judgment for the will of the people, and make up new laws on
his own. That is what I said President Obama did. I believed it was
wrong then.
I believe the President's use of the national emergency declaration
to access already approved military construction project funding is
wrong now. I support his goals. President Trump is right that we have a
crisis, and I support his plans to secure the border, and he can fully
fund it in a more reliable way. By the way, anyone who cares about
getting that money to the border to build walls ought to want that
certainty.
Each one of us in this body has sworn an oath to support and defend
the Constitution of the United States. So today I will vote to support
the disapproval resolution that is before us.
I know the President has the votes to pursue his approach. Even if
the disapproval resolution passes, he can veto it, and his veto will be
sustained. I know that, but I continue to hope that the President uses
the funds he has available to him without creating a bad precedent,
having some of the needed funds tied up in the courts, and taking money
from important military projects.
President Trump is right about the crisis at the border, and the
approach I outlined today would enable him to accomplish his policy
objectives on the border and honor our Constitution.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maryland.
Mr. CARDIN. Mr. President, I rise in strong opposition to President
Trump's so-called emergency declaration of a crisis and invasion on our
southern border, an attempt to misappropriate funds to build the
President's border wall. The President's actions here are an affront to
the constitutional separation of powers, our checks and balances, and
the congressional power of the purse to set appropriation levels.
The very nature of how President Trump decided, finally, to declare a
so-called emergency at our southern border shows that he, too, knows
that there is no real national emergency at our southern border.
President Trump himself admitted, in announcing this so-called
emergency in the Rose Garden:
I could do the wall over a longer period of time. I didn't
need to do this, but I'd rather do it much faster.
It doesn't sound like a national emergency. We know that a medieval
border wall would be a tremendously wasteful expenditure of resources,
as opposed to smarter border security technology that would enhance
screening at our ports of entry and specifically target transnational
criminal operations smuggling contraband into the United States.
The Constitution gives Congress, not the President, the power of the
purse.
[[Page S1876]]
Article I, section 9, clause 7 provides that ``No Money shall be drawn
from the Treasury but in Consequence of Appropriations made by Law.''
Article I, section 8, clause 1 provides that ``the Congress shall
have Power To . . . provide for the common Defence and general Welfare
of the United States.''
Additionally, the presentment clause of the Constitution requires
that the President either approve or veto a bill, and it does not give
him the power to change the text of a law or appropriation levels or to
cast a line item veto for certain provisions.
The Supreme Court held in the line-item veto case of ``Clinton v.
City of New York'' in 1998:
There is no provision in the Constitution that authorizes
the President to enact, to amend or to repeal statutes. . . .
Our first President understood the text of the Presentment
Clause as requiring that he either ``approve all the parts of
a bill, or reject it in toto.''
The courts have regularly upheld the authority of Congress by
statute--and not the President by fiat--to set funding levels. As the
Supreme Court said in Hooe v. United States, in 1910, ``it is for
Congress, proceeding under the Constitution, to say what amount may be
drawn from the Treasury in pursuit of appropriations.''
The Ninth Circuit held in United States v. McIntosh, in 2016, that if
the executive branch spends money in violation of appropriations law,
``it would be drawing funds from the Treasury without authorization by
statute, and thus violating the Appropriations Clause.''
The Supreme Court held in the Office of Personnel Management v.
Richmond, in 1990, that ``any exercise of a power granted by the
Constitution to one or the other branches of Government is limited by
the valid reservation of congressional control over funds in the
Treasury.''
Beyond the legal challenges in court to the President's emergency
declaration, Congress has a responsibility to act, as well, and rein in
the President's abuse of power in order to maintain the proper
separation of powers and checks and balances under our Constitution.
Former Republican Members of Congress recently wrote a powerful open
letter to the current Republican Members of Congress on this issue.
Signatories include former Members John Danforth, Mickey Edwards, Chuck
Hagel, Jim Kolbe, Olympia Snowe, and Richard Lugar. Let me quote:
Our oath is to put the country and its Constitution above
everything, including party politics or loyalty to a
president. . . . That is why we are coming together to urge
those of you who are now charged with upholding the authority
of the first branch of government to resist efforts to
surrender those powers to a president.
We offer two arguments against allowing a president--any
president, regardless of party--to circumvent congressional
authority. One is the constitutional placing of all lawmaking
power in the hands of the people's representatives. . . . The
power of the purse rests with Congress. . . . If you allow a
president to ignore Congress, it will be not your authority
but that of your constituents that is deprived of the
protections of true representative government.
Let me just add that, in addition to what was said in that letter, we
have made appropriations here. We expect those appropriations to be
carried out. We are the representatives of the people. In my own State
of Maryland, we have many military construction contracts on many of
the military installations that could be put at jeopardy. Maryland is
the proud home of major military installations, including Pax River,
Indian Head, Andrews, Fort Detrick, Fort Meade, and the APG, or the
Aberdeen Proving Ground. It is our responsibility to make those
appropriations. If you let this emergency power go, that action could
be compromised by the President of the United States, denying the
people of this country their representative government.
Let me continue the letter from our former Republican colleagues. The
letter continues:
The second argument goes directly to the question each of
you must face: how much are you willing to undermine both the
Constitution and the Congress in order to advance a policy
outcome that by all legitimate means is not achievable? The
current issue--a wall on our southern border--has gone
through the process put in place by the Constitution. It has
been proposed by the President, it has been debated by
Congress, and the representatives of the people allocated
funding at a level deemed appropriate by Congress. We
understand that there are many Members of Congress who
disagree with the final funding compromise reached by a
bipartisan group of legislators.
And it was approved overwhelmingly by Congress.
To you, we ask this question: what will you do when a
president of another party uses the precedent you are
establishing to impose policies to which you are unalterably
opposed? There is no way around this difficulty: what powers
are ceded to a president whose policies you support may also
be used by presidents whose policies you abhor.
The letter then concludes:
We who have served where you serve now call on you to honor
your oath of office and to protect the Constitution and the
responsibilities it vested in Congress. We ask that you pass
a joint resolution terminating the emergency declared by the
President on February 15, 2019.
Congress should therefore take all necessary action to overturn this
unlawful Presidential declaration on border security under the National
Emergencies Act or other authorities. Instead of trying to raid funds
that have been designated for critical military construction and
environmental projects, the President should work with Congress to
enact comprehensive reform.
The Senate should vote to uphold the Constitution and its legislative
prerogatives, including the power of the purse, and to cancel the
President's emergency declaration.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. LANKFORD. Mr. President, during the recent government shutdown,
there were a lot of budget issues that were negotiated. It was a wide-
ranging bill of over 1,000 pages, when it was all said and done, but
the most contentious number in all of the negotiations circled around a
barrier on our southern border in the highest drug trafficking corridor
in the country.
The President requested $5.7 billion to build a barrier fence in 10
locations that the Customs and Border Patrol had identified as the top
10 points of illegal drugs entering our country. That study had been
requested by Congress before they fulfilled that study of identifying
the highest profiled drug trafficking corridors. They brought that back
to Congress. The President then requested funding to build fencing in
those areas of the highest trafficking areas.
His request was not for a 2,000-mile-long wall. It was only to
replace some of the sections of the 650-mile-long barrier that already
exists--areas that were old and ineffective--or to put new fencing in
high drug trafficking areas.
In a highly partisan debate, Congress eventually appropriated $1.375
billion to DHS for the construction of additional barriers. It is not
even close to what the President and what Customs and Border Patrol
said they needed to protect the Nation and members of law enforcement.
During those negotiations, the President announced he would declare a
national emergency if he didn't get the funds needed to secure the
Nation. At that point, there were two options for people who don't want
the President to secure our border. One was to include language in that
appropriations bill before it was passed to prevent the President from
declaring an emergency action and using any of the funds for that. The
second one was to wait until after the bill was passed and declare a
disapproval resolution to stop the President after the bill had already
passed.
Those who oppose border security chose the second option--to fight
the President after passage, which brings us to today.
After signing the funding bill to reopen the government, to deal with
the humanitarian crisis, and the flow of illegal narcotics coming into
our country, the President declared a national emergency in two areas.
He has over 100 authorities; he declared it in two.
One was this. He wanted to replace some of the National Guard members
with members of the Reserve. You have to declare a national emergency
to call up the Reserve members. So his first request was to call up
some of the Reserves to swap out some of the Guard members who were
already serving at the border.
The second one was that in one of the accounts that deal with
military construction, if needed, he wanted to tap into some of those
funds. He was also very clear. There are four accounts
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they would have access to. Three of them don't need an emergency
declaration. Let me run through those.
The first is the $1.375 billion Congress allocated in the government
shutdown, ending debate. There is no question that $1.375 billion has
been approved by Congress.
There is a second fund where there is $600 million. It is in the
Treasury Asset Forfeiture Fund. That fund specifically notes that those
funds can be used for any reason for Federal law enforcement. It is
very clear. It has wide discretion--any use for Federal law
enforcement. There is no legal question that it can be used by Customs
and Border Patrol or to do construction of any kind of barrier.
There is a third fund that already exists within the Department of
Defense. There are $4 billion set aside in this fund, and it can be
used for wide-ranging issues dealing with counternarcotics. There is no
question the President can act on anything dealing with
counternarcotics with that fund.
In fact, in that fund itself, there is specific language already
included in that--and this is up to $4 billion--saying it can be used
for construction of roads, fences, and installation of lighting to
block drug smuggling corridors across international boundaries of the
United States.
Let me run through this. There is up to $4 billion the President can
ask for that he doesn't have to ask for emergency authority at all on.
That is counternarcotics, counterdrug smuggling. There are $600 million
that have been allocated that the President can use because it deals
with law enforcement. There is $1.375 billion that Congress also
allocated. There is no legal question on any of those.
At the tail end of that, the White House has also said, after all
three of those funds are expended--which, by the way, those three funds
exceed the $5.7 billion the President says he needs--the President's
request is, if we go through all of those, and we are not able to close
that section down, at some future point, he wants to be able to access
this other fund.
They have also made it very clear it would be past October. That
would not even be in this fiscal year. So really the debate about
funding is next year's issue, what is called the 2808 funding on
military construction.
That leads us again to this. An emergency declaration really has two
questions in it. Is it an emergency, and does the President have
statutory authority to take this action? Those are the only two
questions on the table.
Is it an emergency is in dispute. There are some folks who would say:
I don't think what is going on at the border is an emergency. There are
some folks--some in this Chamber and some in the other Chamber--who
want to abolish ICE, dismantle a wall, and open the borders.
Thankfully, that is a small group of people who do not see our national
security as important.
For the vast majority of people, they do see an importance in
Congress working on national security and securing our borders. Then we
have the argument about how serious is this.
I have had folks who have said to me: It is really not that bad
because we have individuals coming but not as high of a number as what
it used to be. Twenty years ago, we even had more people crossing the
border illegally.
That is not the question that is in front of us. The request from
Customs and Border Patrol is specifically for the 10 areas with the
highest drug trafficking along all of our southern border. That is the
request.
The question is, Do we have an emergency dealing with illegal drugs
crossing our border after the Customs and Border Patrol has said to us
that we need barriers to slow down the flow of illegal drugs? Are they
right or are they wrong?
Among those areas, right now the Rio Grande Valley sector is the
highest area for movement of illegal drugs crossing into our country.
It is 16 percent of the border miles, but it is 40 percent of the
illegal border and illegal drug trafficking coming in.
Last year, just in that one sector, 550 pounds of methamphetamine
were seized. This is not at the port of entry. This is between ports of
entry, in that open area that doesn't have a fence. There were 550
pounds of methamphetamine seized. There were 1,500 pounds of cocaine
and 64,000 pounds of marijuana that were seized in that one section
without a fence.
The question is, Is that an emergency?
Last year, 70,000 Americans died from overdoses from drugs that came
from and through Mexico--70,000. If we had any--any--issue in America
where 70,000 people died, I can assure you this Congress would stand up
and say we have an emergency, but, for some reason, there is a dispute
on whether it is important we stop the flow of illegal drugs coming
from Mexico into the United States. I don't think that should be in
dispute.
To give an example of how fast this is changing and how much of an
emergency this is, people would say: This has been going on for years.
Why is it different now? Just in the last 2 years, between ports of
entry--again, not at the ports of entry but in that open area where
there is no barrier. Last year, our Customs and Border Patrol seized
388 pounds of fentanyl. That may not sound like much, but only a couple
of grains of it--as in a couple of grains of sand--is enough to kill a
person.
Fentanyl is highly addictive and an exceptionally powerful drug. It
is 100 times more powerful than morphine. It is being laced into heroin
and laced into cocaine. It is a mass killer.
Last year, almost 25,000 people in the country died from an overdose
of fentanyl. Knowing it only takes two or three grains to be too much
to kill a person, 388 pounds of it were seized between ports of entry
along our border.
To tell you how it has accelerated, in 2 years, that is a 269-percent
increase of fentanyl being captured between ports of entry.
Yes, we have an emergency. Yes, we have people dying in this country
due to overdoses from fentanyl, heroin, cocaine, and methamphetamine,
and the problem is not static. The problem is accelerating.
Last year, we had one of the highest--highest--rates of cocaine being
picked up between ports of entry that has ever existed in our country.
Last year, U.S. Customs and Border Patrol seized a total of 11,000
pounds of methamphetamine coming across that border. That is the
highest year ever of that drug coming across our border.
Undeniably, there is an emergency. The question is, Do we agree or
disagree that when the statute says a President has the ability to do a
construction, it means he can also construct a barrier? I believe it
does.
We have those two questions. Is it an emergency, and does the
statutory authority exist?
Interestingly enough, there are some of my friends who are adding a
third question. Should the President have that authority?
That is a different question, and I understand that question.
Interestingly enough, just a few hours ago, the President of the United
States tweeted out--as he is infamous for doing--if Congress wants to
discuss should a President have this authority in the future, I am open
to discussing that, but that is not pertaining to today.
I think that is an interesting question we should address as a
nation--what and how broad should an Executive authority be for a
President--but the debate we have today is plain and simple. Is it an
emergency, and, under current law, does the President have statutory
authority?
My answer to both of those questions is yes.
I hope we continue to do drug interdiction, continue to work through
the issues that need to be addressed, continue to do recovery, and
continue to help people who are fighting through addiction because we
need a healthy nation and also a secure Nation.
For those 10 areas that are the highest drug trafficking areas in the
entire country, I hope we close those doors, and I hope we protect
lives in the days ahead.
I am going to choose to oppose a resolution of disapproval today that
says the President doesn't have the authority to protect the American
people.
With that, I yield the floor.
The PRESIDING OFFICER. Who yields time?
If no one yields time, time will be charged equally to both sides.
The PRESIDING OFFICER (Mr. Young). The Senator from Utah.
Mr. LEE. Mr. President, significant, the very first clause of the
very first section of the very first article of the Constitution
consists of the words ``all
[[Page S1878]]
legislative Powers herein granted shall be vested in a Congress of the
United States, which shall consist of a Senate and the House of
Representatives.''
The Founding Fathers wasted no time in getting right to the heart of
the matter, which is to say that the legislative powers within the
Federal Government--that is, the power to make law within that Federal
system--would themselves be exercised only by the branch of that
government most accountable to the people at the most regular routine
intervals.
This system of government, of course, involved three branches--one
that would make the law, one that would enforce the law, and one that
would interpret the law. That system of government relied, necessarily,
and quite appropriately, on the fact that each branch of government
would operate within its domain and would jealously guard the powers
reserved to it, neither exceeding the powers granted it, nor accepting
a diminution of those powers.
It is with that topic in mind that I rise today, reluctantly, in
support of the resolution before us. When I speak--and some of my
colleagues might even say nag--about our constitutional framework, when
I insist that every word, every clause, and every principle does, in
fact, matter, that we take oaths to support and defend the Constitution
of the United States--we do so, in fact, right here on these very steps
in this very Chamber when we start each term of office--we are
dutybound to adhere both to the letter and to the spirit of that
document, and we should do everything we can to avoid straying from it.
When I say some of these things, I am sometimes accused by some of
naivete. I am told the old ``Schoolhouse Rock'' version of how a bill
becomes a law works in theory, sounds nice in theory, but it is somehow
passe in a vast, diverse, continental nation including about 230
million people today. I am told that given the responsibilities of the
United States as now a vast, global, and economic power and Congress's
inability to get things done, we have no choice but to accept and even
encourage a system of government in which we are relegated to the
backseat, to the backseat of the very things we were supposed to be
doing in the first place, which is passing law, which is setting policy
within the Federal Government.
This faux sophisticated analysis gets things exactly backward. It is
the advocates of Executive overreach and judicial supremacy who are
naive. They believe that given our Nation's size and diversity, only
centralized government can rise above partisan, ideological, regional,
practical differences, and unite us behind one policy, but this
function now strangling this city and strangling this body, toxifying
our political discourse, is directly related to this relentless march
toward centralization. We think, somehow, that by pulling power into
Washington and within Washington to the less-accountable branches of
the government--that is, to the other two branches that are not this
branch--we are governing. No, that is not governing. It is ruling.
With centralization, we empower and enrich the political and
corporate classes at the expense of the working and middle classes.
Centralization is not unity. It is surrender--surrender to exactly the
kind of monarchical and abusive sort of government our Founding Fathers
were trying to protect us from.
Political elites often reassure us and reassure each other that these
deviations from constitutional norms are somehow victimless endeavors.
No one cares about the process, they insist, but the Constitution is
all process. That is the whole point is process. The Constitution
doesn't resolve our political differences. It lays out the processes by
which we are to resolve them. Brushing that process aside does not
override our disagreement. It intensifies them. It escalates them--
ratcheting up our politics into an all-consuming war of outrage and
contempt.
My Democratic colleagues, some of them, at least, would have us
believe this vote is about President Trump and President Trump alone.
It is not. It is about much more than him. It is about much more than
them. It is liberal elites' cult-like zeal for centralized power and
their furious entitlement to wielding it that has led us to this very
vote.
Now, I am not sure the Democratic Party cares immensely, as an
institution, about Presidential overreach. I will leave that to them to
decide and to exhibit. Some simply believe that abuse of constitutional
power should be a one-way street.
In many instances, we have had Members of this body support previous
Presidents of both political parties in engaging in acts of overreach.
The real source of outrage here is not constitutionally mandated
procedure but simply that we, as an institution, have voluntarily
surrendered--we have relinquished our legislative power.
In this instance, this happens to be an exercise of power in an area
in which many on the other side of the political aisle happen to
disagree. To make clear, a border fence--a border barrier is a policy I
support wholeheartedly and unequivocally. I agree with the need to
secure our border. I agree with the President that there is a crisis
unfolding on our border endangering men and women and children and
endangering many of those who were most affected by the communities who
are themselves in the direct path of these caravans. I support a border
wall, and I encourage full congressional funding for it.
I think it is a tragedy and really something of an outrage that we
haven't done that as a Congress. I support workplace enforcement of
immigration laws. I support a biometric entry-exit system. I support
the President's new ``Remain in Mexico'' policy that would keep asylum
seekers south of the border while they await processing if they come
from a noncontiguous country. I support the President's calling up
military Reservists to support border agents in their dangerous and
underappreciated work.
I support the President's invocation of 10 USC section 284(b)(7),
which unequivocally authorizes him, in certain instances, relevant here
and present here, to authorize funding for the construction of a fence
along international boundaries as a means of combating the illegal
international drug trade.
I support the President's use of up to $601 million from the Treasury
Forfeiture Fund and $2.5 billion from the 284 fund I mentioned a minute
ago, and I support the administration's work, on a diplomatic level,
with Mexico to reduce the flow of migrants to the United States. I have
supported all of these things in this administration, and I have for
years--during this administration and prior to that--and I will
continue to support these policies.
An emergency declaration, in accordance with the National Emergencies
Act, in this instance, is different. The White House is asserting
authority to spend money on projects and priorities in a manner not
themselves directly authorized by Congress. Congress directly refused a
request to appropriate the specific amount of funds we are dealing
with.
At the end of the day, it is not the White House, it is not this
President, it is not other Presidents who are at fault for this; it is,
in fact, Congress. Congress was the institution that chose voluntarily
to relinquish this power. Congress, as an institution, adopted and
enacted legislation that was so broad as to take basically all the
guardrails off the legislative process.
Congress, as an institution, in 1976, adopted the National
Emergencies Act and said the President may declare an emergency with
almost no standards, and then, once a President declares an emergency,
there are some estimated 128 different provisions of law that can be
looped in and made effective as a result of the declaration of that
emergency.
At the time Congress did this, Congress left its foot in the door,
saying that Congress unilaterally could veto the President's actions by
passing a concurrent resolution not itself subject to Presidential
veto. For reasons having to do with a subsequent Supreme Court ruling
that occurred 7 years after the enactment of the National Emergencies
Act in 1983, a case called INS v. Chadha--a case, coincidentally,
argued by my late father. If he were here today, perhaps I would half-
jokingly acknowledge that maybe he is in some ways to blame for this.
After the Supreme Court concluded in INS v. Chadha that the
legislative veto was unconstitutional, Congress
[[Page S1879]]
went through and systematically removed, from about 450 statutes, the
legislative veto provisions, replaced them with resolutions of
disapproval, replaced them with a procedural mechanism whereby Congress
may signal its disapproval, but that disapproval is still subject to
signature or veto by the President.
This is where we have a problem because that converts, effectively,
legislative power by handing it over to the Executive and then leaves
the Congress without an opportunity to signal how it feels about this
beyond adopting a resolution of disapproval, which is itself subject to
a Presidential veto.
That is why I am concerned about this. I have concerns about this
legal framework. This is not about the President. This is not about my
disagreement with or disapproval of the President or his approach to
border security or his desire to build a barrier along our southern
border. I think all those things need to happen.
This law is wrong. It is not President Trump's fault. It is
Congress's. We need to change it. I look forward to working with my
colleagues on both sides of the aisle to reform the National
Emergencies Act. We need to get this done. This is an issue that is
neither Republican nor Democratic, neither liberal nor conservative. It
is simply an American issue.
I yield the floor.
The PRESIDING OFFICER. The Senator from North Carolina.
Mr. TILLIS. Mr. President, I ask unanimous consent that I have up to
5 minutes to make comments on the resolution.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. TILLIS. Mr. President, a few weeks ago, I was talking with my
staff, in advance of the President issuing the emergency order, and I
told them I wanted to put together an op-ed to really express two
things; one, my concern with the manner in which funds were being
appropriated but also that there is a real crisis we have to address.
In fact, I am very sympathetic to what the President did, and the only
question is how he went about doing it.
I received a lot of feedback over the past few weeks, but what it
allowed me to do was to engage in a discussion with some of my
colleagues here and with the White House over the past couple of weeks
that have been very productive.
My main concern with this Executive action is future potential
abuses. I have a concern with the Executive action the President took,
the emergency order, and that is why I voiced it, but I am sympathetic
to what he was trying to do.
I think we can view this as an opportunity--I thought we could view
this as an opportunity where maybe we could have a discussion about the
National Emergencies Act and potentially make a real difference.
So today, I come to the floor to say that I do not intend to vote for
the resolution of disapproval, and here is why. A lot has changed over
the last 3 weeks--a discussion with the Vice President and a number of
senior administration officials, a lot of collaboration with my
colleague from Utah. There is serious discussion about changing the
National Emergencies Act in a way that will have Congress speak on
emergency actions in the future.
The White House has been very gracious and I should say very patient,
given my initial position, in working with us and as late as today
having the President make a statement that he is willing to work with
us. I suspect that we will hear more from the President.
We also heard today from Leader McConnell. I was trying to remember--
I don't know whether it has been done before--Leader McConnell took to
the floor this morning and said that he encourages this discussion
through the regular order and working on a bipartisan basis to move a
measure forward through the Homeland Security Committee and to this
floor for a vote. I, for one, am going to work on that and hopefully
get consensus on a bipartisan basis after the temperatures have cooled
and we can move on.
In the meantime, I think we have to recognize that we have a crisis
at the border, with 76,000 people crossing illegally in February alone.
We have narcotics flooding our country, poisoning our children and
adults of all ages. A lot of it has to do with the porous border and
the seemingly unending and spiraling-out-of-control crossings.
One of the challenges that I have to communicate to my constituents,
and I am sure everyone does, is how do I reconcile--first, I should say
that my colleagues on this side of the aisle who will vote for the
resolution of disapproval I think to a person also recognize that there
is a crisis. I respect them for their decision; it is just not a
decision that I can take.
Over the course of the next few months, I look forward to working
with the administration to talk about boundaries that we are very close
to getting agreement on and making changes to the National Emergencies
Act that will make sense.
The fact that this President is prepared to transfer power back to
the article I branch--by his statements, either publicly or through his
administration--is extraordinary. That we have a leader, with a
Republican down the street, willing to move this through the regular
order is extraordinary.
For those reasons, I will be voting against the resolution of
disapproval, and I encourage my colleagues to do the same.
Thank you.
Mr. GRASSLEY. Mr. President, today, I am voting against the
resolution to end the national emergency. Make no mistake: Our Nation
is facing a prolonged and worsening security and humanitarian crisis on
our southern border. Lethal drugs are flooding across the border at an
alarming rate. Just last year, enough fentanyl to kill 88 million
Americans was seized by border patrol agents between our ports of
entry. We are also witnessing unprecedented levels of illegal
immigration and are on track for the highest level of illegal
immigration in more than a decade. That means more human trafficking,
more forced labor, and more exploitation of people along the dangerous
journey to the United States. Failures by Congress to adequately
address our immigration and border security issues have only
exacerbated this crisis.
Here is just a sample of the data from our Federal authorities. The
total volume of illegal immigration is increasing. Illegal immigration
is on pace to exceed the highest level in more than 10 years. There has
been a 338 percent increase in family units from the Northern Triangle
apprehended thus far in fiscal year 2019 compared with same period in
fiscal year 2018. There was 54 percent increase in unaccompanied minors
apprehended thus far in fiscal year 2019 compared with same period in
fiscal year 2018.
Additionally, drug seizures are increasing between ports of entry. In
fiscal year 2018, U.S. Border Patrol intercepted 388 pounds of fentanyl
between our ports of entry. That is enough to kill 88 million
Americans; that is right, 88 million Americans. Fentanyl seizures
increased 73 percent between fiscal year 2017 and fiscal year 2018.
Heroin seizures also increased 22 percent between fiscal year 2017 and
fiscal year 2018. Methamphetamine seizures increased 38 percent between
fiscal year 2017 and fiscal year 2018.
As I have said repeatedly, even though the President is using the
authority given to him by Congress, I share my colleagues' concerns
that too much authority has been delegated to the executive branch. In
1976, Congress gave the President the authority to declare national
emergencies, so we shouldn't be surprised when he seeks to use it, just
as others have done. For this reason, I will continue working to pass
meaningful legislation, like the ARTICLE ONE Act, to reclaim
congressional power from the executive branch and improve congressional
oversight of the National Emergency Act. I encourage my colleagues to
join in this effort, which takes real action, as opposed to symbolic
show votes that don't address the root of the problem.
Mr. DURBIN. Mr. President, the President often claims that he knows
how to make deals, but when it comes to the border, he seems
uninterested in a good deal, a deal to provide effective border
security, and he is hurting our military in the process. This week's
vote to repeal the President's national emergency is a vote to restore
sanity to our border security debate and restore Congress's
constitutional power of the purse.
[[Page S1880]]
We all remember Donald Trump's idea that we need a 2,000-mile
concrete wall from sea to shining sea and his claim that Mexico would
pay for it. He said it some 200 times on the campaign trail and in the
Oval Office. In December, after asking and failing to receive funding
from Congress for this wall, the President said, ``I am proud to shut
down the government for border security.''
What followed was the 35-day Trump shutdown, the longest government
shutdown in U.S. history. It cost our country $11 billion, according to
the Congressional Budget Office. After the President finally agreed to
reopen the government, Congress provided funding to the Department of
Homeland Security for smart and effective border security measures,
including technology and additional Customs personnel. We did this
because the President's own administration has stated that the vast
majority of lethal narcotics that cross our southern border come
through legal ports of entry.
But within hours of signing this bill, President Donald Trump
announced that it wasn't enough. The President went on television to
announce that he was declaring a national emergency over the border,
and he announced that he was taking $6.5 billion from our military to
build it.
Presidents of both parties have declared national emergencies. Each
time, it was done in response to a specific crisis, in order to unlock
certain statutory authorities. President George W. Bush declared a
national emergency after the 9/11 terrorist attacks. In the 1970s,
President Carter declared a national emergency as it pertained to Iran.
Presidents of both parties have declared and updated emergencies
relating to instability in Syria.
What Presidents did in those situations varied--sometimes levying
sanctions, sometimes seizing assets--but each time, it was accepted on
a bipartisan basis as necessary, legitimate, and in defense of our
national interests. What President Trump did was different. For the
last 2 years, he has struggled to fulfill a campaign promise, so when
he didn't get his way, he created a fake crisis and declared a phony
emergency.
The good news is that the American people aren't buying it. A poll
conducted earlier this month by Quinnipiac University found that 66
percent of voters oppose the President's end-run around Congress and
oppose his fake emergency declaration.
Newspapers around the country have concluded the same thing. The
Tampa Bay Times editorial board said it clearly a few days after the
President's announcement, ``Border wall is no emergency.'' In their
words, ``It is not a national emergency just because President Donald
Trump didn't get his way.''
West Virginia's Herald Dispatch newspaper concludes much the same,
urging the President to ``take a realistic look at whether the wall is
needed or if it's simply an unnecessary quest to satisfy his ego.''
That is common sense, but then common sense seems to be in short supply
in this White House.
Not only is the President declaring a fake emergency, but he is using
that crisis to take money. The President has told us that he will take
$6.5 billion that Congress gave to our troops and spend it instead on a
wall on the southern border. He is proposing to delay or cancel $3.6
billion in military construction projects--projects that our military
told Congress it needed less than a year ago--and divert it to his
wall.
Last Friday, Senator Schatz and I sent a letter to Acting Secretary
of Defense Patrick Shanahan demanding to know which projects have been
deemed, due to political interference, as less important than the
President's wall. There are almost 400 military projects at risk. They
cover 43 States, the District of Columbia, Guam, Puerto Rico, and more
than a dozen foreign countries, including strong U.S. allies like Japan
and the United Kingdom.
The President will have to cancel or postpone approximately 20
percent of these projects for his wall. What are we talking about?--
$800 million for essential training facilities like National Guard
Readiness Centers, simulators, and firing ranges in Alaska, Arizona,
Colorado, and Montana, to name a few; $1.4 billion worth of
maintenance-related projects, such as aircraft hangars, and vehicle
maintenance shops in Arkansas, Indiana, Missouri, Oklahoma, and
elsewhere; $1 billion worth of projects for medical and dental care
facilities, schools for military families, military barracks and dining
facilities in Arizona, Missouri, Texas, and beyond.
For instance, the Marine Corps needs a new rifle range at Parris
Island, SC. This base trains 20,000 new Marine recruits every year.
Also on the list is new training center at Fort Bragg, NC, to provide
top-notch training and prevent injuries among our special operations
forces. They are using old warehouse right now. Are we really going to
tell our military that their needs are being put on hold so the
President can fulfill his campaign promise to build a wall? I hope
those aren't our priorities.
In addition, the President also announced that he would take $2.5
billion in other military funds for his wall. The Pentagon tells me
that they may take some of this money from excess military pay and
pensions. Meanwhile, each of the military services--Army, Air Force,
Navy, and Marines--have met with me to discuss a long list of urgent,
last-minute needs, but with $2.5 billion being diverted for the wall,
none of those leaders were able to say whether or not they would get
the funding they need.
Last year, Hurricane Florence damaged 800 buildings at Camp Lejeune,
New River, and Cherry Point, causing $3.6 billion in damage from wind
and flood waters. A similar hurricane leveled Tyndall Air Force Base,
in Florida. Both of them could use billions right now for repairs.
I am also told that the Navy needs hundreds of millions of additional
dollars for unexpected ship maintenance. We can't afford not to make
sure our sailors are safe on deployment. The National Guard has 2,100
personnel on the border, but it is starting to run low on its pay
account. Unless DOD finds $150-300 million this year, the Guard will
have to cut short its summer trainings in all 50 States to pay for
this.
My subcommittee has identified almost $5 billion in military
priorities that need attention now, but after the President takes $2.5
billion to pay for his border wall, which priorities will get cut?
This week, Republicans and Democrats in the Senate should join the
House in rejecting the President's phony emergency declaration, and the
Senate should reject any effort by the President to take money from our
troops to build the wall.
Mrs. FEINSTEIN. Mr. President, I rise today to speak on the
resolution of disapproval before us that would terminate President
Trump's phony national emergency.
President Trump's national emergency declaration, which he attempts
to justify using falsehoods about immigration and the Southern border,
presents a serious threat to the separation of powers and the rule of
law.
First I would like to speak about how there really isn't an emergency
at the border, then I would like to get into the constitutional
problems with the President's actions.
While illegal border crossings do occur, all of the numbers refute
President Trump's claim that there is a crisis at the border. Those
claims simply don't hold up.
Unauthorized border crossings have been at their lowest levels in
years.
In 2000, border agencies reported more than 1.6 million
apprehensions.
In 2017, the agency reported just 303,916 apprehensions, one-fifth of
the level just two decades ago.
It is clear that investments in border security have worked. Those
include additional border patrol agents, fencing in urban areas, ground
sensors, drones, and increased use of E-Verify.
In addition, since 2014, two-thirds of undocumented immigrants have
come to the United States legally but then overstayed their visas, more
than 500,000 per year. A border wall would do nothing to curb visa
overstays.
Dangerous criminals aren't overrunning our country.
Immigrants commit fewer crimes than native-born citizens. Data
collected in Texas show the arrest rate for undocumented immigrants in
2015 was 40 percent lower than for the native-born population.
Additionally, many immigrants are actually legally seeking asylum
through the process already in place. There are often families with
young
[[Page S1881]]
children fleeing persecution and violence in Central America who have a
legal right to petition our government for asylum.
Under current law, they can apply for asylum by presenting themselves
at a U.S. port of entry. Unfortunately, by focusing on a border wall
instead of investing in modernizing entry points, President Trump's
policies force many of these families to turn themselves into Border
Patrol in between ports and ask for asylum or wait for long periods in
Mexico in dangerous conditions.
The timing of the President's declaration also undercuts his claim
that this is an emergency.
President Trump kicked off his Presidential campaign nearly 4 years
ago by claiming that immigrants were bringing drugs and crime to the
United States. Despite this, he decided to wait until more than halfway
through his term to declare his emergency and only then after Congress
refused to give him the money he wanted.
If there were truly an emergency, the President should have declared
it on day 1. He did not.
Trump also emphatically rejected a bill that would have given him $25
billion for a border wall in exchange for providing Dreamers a path to
citizenship. Clearly, there was no emergency then either.
But the most clear statement that there is no emergency came from
President Trump himself, who after declaring the emergency, said this
in a Rose Garden speech: ``I didn't need to do this, but I'd rather do
it much faster.''
We shouldn't judge the President's attempt to divert appropriated
funds to his border wall through a partisan lens, but rather view it as
a radical departure from our constitutional separation of powers.
Through its appropriations clause, the Constitution provides
Congress, not the President, with the power of the purse. Congress
decides how to spend taxpayer dollars.
By providing Congress with this power, our Founding Fathers imposed a
key check on the President, a check that President Trump is trying to
do away with.
Congress exercised its power of the purse last month in a spending
bill to keep the government open by including $1.35 billion for border
barriers, rather than the $6 billion the President sought for a border
wall.
The Constitution gave the President two options at that point: sign
the bill or veto it. President Trump tried to create a third path,
saying he would sign the bill but still divert additional Federal
dollars to the wall, his so-called emergency.
In essence, the President decided to violate the Constitution so he
could more quickly fulfill a campaign promise to build his border wall.
One of the ironies of President Trump's decision to divert funds to a
border wall that won't stop drugs or crossings is the pots of money
from which he is drawing.
First, the White House said it would pull $2.5 billion from a
counternarcotics program that is used to support international law
enforcement interdiction and apprehension efforts, as well as to fund
National Guard support for State drug law enforcement operations,
including in California.
Second, the White House said it would take another $3.5 billion from
military construction projects.
These are programs that actually help improve our national security,
and the President wants to take billions of dollars from them to build
a wall--incredible.
The long-term danger here is that President Trump will set a
precedent that a Commander in Chief can interpret the Nation's laws and
the Constitution any way he wants. This can't be allowed to stand.
The National Emergencies Act of 1976 does allow the President to
reprogram funds appropriated by Congress in case of a national
emergency, like a hurricane or earthquake, but it is clear that the law
was never intended to be used to explicitly overrule the will of
Congress, which is how President Trump wants to use it.
During the Korean war, the Supreme Court struck down a similar
attempt by President Truman to use emergency powers to seize privately
owned steel mills, an action inconsistent with laws passed by Congress.
Even if there were an emergency--which there isn't--President Trump
still wouldn't have the authority to reprogram Federal funds in this
context.
Specifically, the statute that President Trump relies on, 10 U.S.C.
Sec. 2808, allows the President, in a national emergency that
``requires the use of the armed forces,'' to spend unobligated military
construction funds for military construction projects ``that are
necessary to support . . . use of the armed forces.''
The situation at the border does not ``require the use of the armed
forces,'' and it is unclear how the wall would be ``necessary to
support'' them.
If anything, the President's use of the military at the border to
enforce the law raises additional questions under the Posse Comitatus
Act, which has prohibited the use of the Armed Forces for domestic law
enforcement for well over a century.
In sum, President Trump is relying on an incredibly frail legal
argument to justify this blatant power grab. It is incumbent upon
Congress to hold this President accountable as he attempts to seize one
of our most important powers.
I urge my colleagues to support this resolution of disapproval and
cancel President Trump's phony emergency.
Thank you.
The PRESIDING OFFICER. The Democratic leader.
Mr. SCHUMER. We have 1 minute remaining, I think. I ask unanimous
consent to speak in leader time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SCHUMER. Thank you, Mr. President.
Today, the Senate will vote on the resolution to terminate the
President's declaration of a national emergency.
Let me begin with a quotation.
Revelations of how power has been abused by high government
officials must give rise to concern about the potential
exercise, unchecked by the Congress or the American people,
of this extraordinary power. The National Emergencies Act
would end this threat and ensure that the powers now in the
hands of the Executive will be utilized only in a time of
genuine emergency and then only under safeguards providing
for congressional review.
Let me repeat that. ``[T]he powers now in the hands of the Executive
will be utilized only in a time of genuine emergency.'' That is from
the special committee report on the National Emergencies Act, which was
passed decades ago.
The bottom line is very simple. We all know the other arguments--that
this is not an emergency. The President himself said so. He said he
didn't have to do this if he didn't want to. In previous emergencies,
it was either apparent, like 9/11, or it was a disease or some other
immediate disaster, and there was a long explanation as to why. We have
gotten no explanation as to why this is an emergency.
The second reason, of course, is the money that might be taken away
from the military--our brave men and women in uniform not getting the
dollars they need--for this wall.
The third, of course, is that the President couldn't get his way
through Congress even when we had 2 years of Republican leadership in
the House, Senate, and White House, couldn't get his way this time, and
is now simply going around Congress to declare an emergency.
But those reasons pale for the most important reason. This is a
momentous day. The balance of power that the Founding Fathers put in
place, so exquisitely designed, has served this Nation extremely well
for over two centuries. That balance of power was in large part
motivated by the fear of an overreaching Executive. The patriots had
just fought King George. They knew what it was like to have an
Executive who would go too far, and they put in precautions to make
sure that didn't happen.
Today, we are being asked, in a way that we haven't been asked in
decades, maybe even longer, to change that balance of power. And make
no mistake about it--it will set an awful precedent for the future, no
matter who is President. It will change it. If a President can invoke
an emergency because he didn't get his way or she didn't get her way,
without real cause, without a real emergency, woe is our Republic in
many ways--the ways the Founding Fathers feared.
I know this is a very difficult vote for my friends on the other side
of the
[[Page S1882]]
aisle--much more difficult than ours. We all know that the President is
extremely popular in the Republican Party for maybe a few good
reasons--I would say mostly bad, but he is. We know that he has been
vindictive, contemptuous, calling out people who oppose him. So it is
not an easy vote. I take my hat off to those Members on the other side
of the aisle who have let principle rise above party, who understand
what the Constitution requires this afternoon and have agreed to vote
against this emergency.
I would plead with those others who haven't made up their minds to
look at this moment in history. This is not an immediate moment. You
can be for the wall or against the wall, you can think that what we are
doing at the southern border is inadequate, but that issue pales before
the issue before us; that is, how far an Executive can reach when
Congress does not want to do what that Executive wants.
This is a crucial moment. This is a moment historians will look back
on. This could be a moment that changes the fundamental balance of
power in our government. So I would ask my colleagues--I would really
plead with my colleagues. I understand the politics are difficult--much
harder for you than for me--but our Nation, our Constitution, the
beauty of this government demands that we rise to the occasion this
afternoon. Please join us in rejecting this emergency and keeping our
government with the same balance of power that has served us so well
for two centuries.
I yield the floor.
The PRESIDING OFFICER. Under the previous order, all time has
expired.
The joint resolution was ordered to a third reading and was read the
third time.
The PRESIDING OFFICER. The joint resolution having been read the
third time, the question is, Shall the joint resolution pass?
Mr. CARDIN. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The bill clerk called the roll.
The result was announced--yeas 59, nays 41, as follows:
[Rollcall Vote No. 49 Leg.]
YEAS--59
Alexander
Baldwin
Bennet
Blumenthal
Blunt
Booker
Brown
Cantwell
Cardin
Carper
Casey
Collins
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Lee
Manchin
Markey
Menendez
Merkley
Moran
Murkowski
Murphy
Murray
Paul
Peters
Portman
Reed
Romney
Rosen
Rubio
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Toomey
Udall
Van Hollen
Warner
Warren
Whitehouse
Wicker
Wyden
NAYS--41
Barrasso
Blackburn
Boozman
Braun
Burr
Capito
Cassidy
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Isakson
Johnson
Kennedy
Lankford
McConnell
McSally
Perdue
Risch
Roberts
Rounds
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Young
The joint resolution (H.J. Res. 46) was passed.
The PRESIDING OFFICER. The majority leader.
____________________