(Senate - March 14, 2019)

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[Pages S1857-S1882]
From the Congressional Record Online through the Government Publishing Office []

                                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for the quorum call be rescinded.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 
  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.


  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 
  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 

[[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 
  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 

  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 
       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 
       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 
  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 
  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 
  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 

       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 
       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 
       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 
       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 
       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 

                          (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 
       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 
  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 
  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

[[Page S1862]]

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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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

[[Page S1866]]

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/
  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 

[[Page S1867]]

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 
  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 
  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 
  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,

[[Page S1868]]

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 
  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 
  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 
  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 
  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 
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The PRESIDING OFFICER. The Senator from Rhode Island.


  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 

[[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 
  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 
  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

[[Page S1877]]

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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  In 2000, border agencies reported more than 1.6 million 
  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 
  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 

[[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 
  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 
  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 
  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.]


     Cortez Masto
     Van Hollen


     Scott (FL)
     Scott (SC)
  The joint resolution (H.J. Res. 46) was passed.
  The PRESIDING OFFICER. The majority leader.