Floor Remarks on Emergency Declaration

March 15, 2019

Mr. President, it’s significant that the very first clause of the very first section of the very first article of the Constitution consists of the words “All legislative powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and a House of Representatives.”

The Founding Fathers wasted no time in getting right to the heart of the matter, which is to say that the legislative powers within the federal government – that is, the power to make law within that federal system – would themselves be exercised only by that branch of that government most accountable to the people at the most regular, routine intervals.

This system of government of course involved three branches; one that would make the law, one that would enforce the law, and one that would interpret the law. That system of government relied necessarily and quite appropriately on the fact that each branch of government would operate within its domain and would jealously guard the powers reserved to it, neither exceeding the powers granted it nor accepting diminution of those powers.

It’s with that topic in mind that I rise today, reluctantly, in support if 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’re duty bound 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’m sometimes accused of naiveté. I’m told that the old School House Rock version of how a bill becomes a law works in theory, sounds nice in theory, but it’s somehow passé in a vast, diverse, continental nation including about 230 million people today.

I’m 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 back seat, to the back seat of the very things that we were supposed to be doing in the first place – which is passing law, which is setting policy within the federal government.

But, Mr. President, this faux-sophisticated analysis gets things exactly backwards. It is the advocates of executive overreach and judicial supremacy who are naive.

They believe 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 the dysfunction now strangling this city, strangling this body, toxifying our political discourse, is directly related to this relentless march towards 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 – that we’re governing. No, that’s not governing -- it’s ruling.

Through centralization we empower and enrich the political and corporate classes at the expense of the working and middle classes. Centralization is not unity, it’s surrender – surrender to exactly the kind of monarchical and abusive sort of government that 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, Mr. President, the Constitution is all process. The whole point is process. The Constitution doesn’t resolve our political differences; it lays out the processes by which we are supposed to resolve them.

Brushing that process aside does not override our disagreements; it intensifies them, it escalates them, ratcheting up our politics into an all-consuming war of outrage and contempt.

My Democratic colleagues – some of them, at least – would have us believe that this vote is about President Trump and President Trump alone. It’s not. It’s about much more than him, it’s about much more than them.

It is liberal elites’ cult-like zeal for centralized power and their furious entitlement to wielding it that has led us to this very vote.

Now, I’m not sure that the Democratic party cares immensely as an institution about Presidential overreach. I’ll leave that to them to decide and to exhibit.

Some simply believe that an abuse of constitutional power should be a one-way street. In many instances we’ve had members of this body support previous presidents of both political parties in engaging in acts of overreach.

No, Mr. President, 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. And then 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 that I support –wholeheartedly, 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 are 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’s 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 reservice to support border agents in their dangerous and underappreciated work.

I support the President’s invocation of 10 USC Section 284b.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 combatting the illegal international drug trade. I support the President’s use of up to 601 million dollars from the Treasury Forfeiture Fund and 2.5 billion dollars 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’ve 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. That is, the White House asserting authority to spend money on objects and priorities in a manner not themselves directly authorized by Congress. Congress directly refused the request to appropriate the specific amount of funds that we’re dealing with here.

But at the end of the day, it is not the White House, it is not this President, it is not other presidents who are to fault for this, Mr. President – 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 guard rails off of the legislative process.

Congress as an institution in 1976 adopted the National Emergencies Act and said that the President may declare an emergency with almost no standards. And then once a president declares an emergency, there are some estimated 128 different provisions of law that can be looped in and made effective as a result of the declaration of that emergency.

At the time Congress did this, Congress left its foot in the door, saying that congress unilaterally could veto the president’s actions by passing a concurrent resolution not itself subject to Presidential veto.

For reasons having to do with a subsequent Supreme Court ruling that occurred seven years after the enactment of the National Emergencies Act in 1983, a case called INS v. Chadha – in which the Supreme Court concluded that the legislative veto was unconstitutional – Congress went through and systematically removed from about 450 statutes the legislative veto provisions and replaced them with resolutions of disapproval. They 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’ve got a problem: because that effectively converts legislative power by handing it over to the Executive branch and then leaving Congress without an opportunity to signal how it feels about this beyond adopting a resolution of disapproval, which it itself is subject to presidential veto.

That’s why I am concerned about this. I’ve got 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.

But this law, Mr. President, is wrong.

It’s not President Trump’s fault, it’s Congress’. And 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’s neither Republican nor Democratic, it’s neither liberal nor conservative; it’s simply an American issue.

Thank you, Mr. President. I yield the floor.