[Congressional Record Volume 165, Number 38 (Monday, March 4, 2019)]
[Senate]
[Pages S1613-S1614]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Declaration of National Emergency
Mr. ALEXANDER. Madam President, on Thursday, I suggested that
President Trump has sufficient congressional authority to spend the
$5.7 billion he asked for in his January 6 letter to the Senate
Appropriations Committee chairman to build 234 miles of border wall
without resort to a dangerous national emergency precedent that could
upset the constitutional separation of powers that goes to the heart of
our freedom.
I believe the President has clear authority to transfer up to $4
billion among accounts within the over $600 billion defense budget in
order to counter drug activities and to block drug smuggling corridors
across international borders.
On February 15, the President said that he plans to use $2.5 billion
of this same transfer authority to build the 234 miles of wall along
the southern border that he asked for in his January 6 letter. If he
increases the transfer from $2.5 billion to $3.7 billion, along with
the other existing funding authority that he has, he will have the full
$5.7 billion that he said he needed.
William E. Nelson, of New York University School of Law--one of
America's foremost scholars of legal history--wrote an excellent op-ed
last week that explained why it is so important that the President and
the Congress should not, in Professor Nelson's words, ``invert the
entire constitutional order where Congress appropriates and the
President spends.''
I ask unanimous consent that Professor Nelson's article be printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
The Conversation: Trump vs. Congress: The Emergency Declaration Should
Not Be Resolved in Court
(Oped by: William E. Nelson, New York University February 28, 2019)
President Donald Trump's emergency declaration to build a
border wall has provoked a constitutional confrontation with
Congress.
Here is the background for understanding what's at stake--
beginning more than two centuries ago.
A major problem for the framers at the Constitutional
Convention in 1787 was how to create a presidency powerful
enough to protect the nation, yet constrained enough to
prevent a president from becoming a dictator.
Ultimately, the president was given power to enforce the
law, conduct foreign relations and command the armed forces.
Congress retained most other key powers, including the power
of the purse and the power to declare war.
The framers knew they could not predict all that the future
would bring. So they left the precise boundaries between
presidential and congressional power unclear. This
imprecision in our checks and balances has served the nation
well for 230 years because it provides the flexibility to
govern while preventing tyranny.
As scholars of constitutional law and history, we believe
that President Trump's assertion of a national emergency to
build a wall along the Mexican border and the lawsuits filed
in response together threaten the very imprecision that has
helped maintain constitutional checks and balances for more
than two centuries.
[[Page S1614]]
To best maintain that balance, this confrontation should be
resolved in the political realm, not in the courts.
The National Emergency
But the lawsuits over the emergency declaration will
probably reach the Supreme Court, and the court might well
hold Trump's emergency declaration unconstitutional.
That would set a precedent that would unduly limit national
emergency power that some future president may need.
Alternatively, the court could decide the lawsuits in
Trump's favor. That would invert the entire constitutional
order, where Congress appropriates and the president spends.
It would undercut the checks and balances provided by the
framers and lead to an incredibly powerful presidency.
Either result the court reaches would set a bad precedent.
Congress can avert this problem.
The 1976 National Emergencies Act gives Congress power to
invalidate a president's declaration of emergency by a
resolution passed by simple majorities of both houses.
The House voted 245-182 on Tuesday to overturn President
Trump's national emergency declaration. Democrats were joined
by more than a dozen Republicans in the vote. The Senate will
now take up the measure, though a vote has not been
scheduled.
White House adviser Stephen Miller has already suggested
that Trump would veto any such resolution.
``He's going to protect his national emergency declaration.
Guaranteed,'' Miller said on Fox News. Both the House and the
Senate would then need two-thirds majorities to override his
veto.
We believe that for Congress to protect the constitutional
order, its members must muster the necessary two-thirds
majority.
To the court
If Congress does not override the president's veto, the
lawsuits will probably go to the Supreme Court. The court's
decision has strong potential to do harm to the historic
constitutional balance.
That balance was upheld by the Supreme Court in a crucial
decision more than 50 years ago.
On April 9, 1952, President Truman declared a national
emergency. In the midst of the Korean War, he seized the
country's steel mills on the eve of a nationwide strike
because steel was necessary to make weapons. weapons. The
steel companies immediately brought a lawsuit against the
seizure in federal court.
Recognizing the importance of the issue, the Supreme Court
heard arguments on May 12, and handed down its decision on
June 2.
The court, in Youngstown Company v. Sawyer, rejected the
president's claim by a 6-3 majority.
Justice Robert Jackson wrote an opinion proclaiming a
general approach to the balance of powers between Congress
and the president, rather than a fixed rule.
Jackson declared that ``when the President acts pursuant to
an express or implied authorization of Congress, his
authority is at its maximum.''
The president's power, Jackson wrote, is in a ``zone of
twilight'' when Congress has not spoken. When ``the President
takes measures incompatible with the expressed or implied
will of Congress, his power is at its lowest ebb.''
President Against Congress
President Trump is acting contrary to Congress's will by
appropriating money Congress has refused to appropriate. He
signed a carefully constructed compromise budget bill passed
by more than veto-proof two-thirds majorities in both houses.
He accepted the U.S. $1.375 billion that the bill gave him
for a border wall.
He then broke the deal by declaring a national emergency to
allocate an additional $6.7 billion to pay for border wall
construction.
In two important cases, the Supreme Court has broadly
prohibited Congress from giving any of its appropriations
authority or responsibility to the president--even
voluntarily.
Congress's adoption of a joint resolution seeking to
invalidate Trump's emergency declaration--an explicit
statement of congressional will--would provide conclusive
evidence that would only strengthen the argument that the
president is acting contrary to Congress's will.
Preserving the Constitutional Balance
If the case gets to the Supreme Court, the president's
lawyers might argue that for Congress to decisively oppose an
emergency declaration of the president, lawmakers must
override his veto by a two-thirds vote.
Imposing such a veto override requirement, however, would
eliminate the court's role. That's because a presidential
declaration of emergency is immediately invalid if Congress
overrides a presidential veto.
Two-thirds overrides are historically unlikely by Congress.
And requiring a two-thirds vote would give a president who
declares a national emergency virtually unlimited power to
appropriate money to his or her heart's content--perhaps
hundreds of billions of dollars to address, for example,
climate change by subsidizing construction of wind farms.
Requiring Congress to override a presidential veto that
protects a presidential appropriation would turn the
appropriations power and the Constitution's checks and
balances inside out.
Congress has already spoken through passing the spending
bill and will be considering a resolution to invalidate the
president's declaration of emergency.
Such a resolution, even if vetoed by the president, places
President Trump's declaration in Justice Jackson's category
where presidential power ``is at its lowest ebb.''
It also preserves the historic flexibility by allowing the
court's decision to give deference to the votes of Congress
in cases of claimed emergencies.
This story has been updated to reflect the House vote on
Feb. 26, 2019, on the resolution to overturn President
Trump's national emergency declaration.
Mr. ALEXANDER. I yield the floor.
The PRESIDING OFFICER. The Senator from Mississippi.
Mr. WICKER. Madam President, what is the pending business?
The PRESIDING OFFICER. The pending business is the Rushing
nomination.
Mr. WICKER. Madam President, I ask unanimous consent to speak as in
morning business for no more than 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.