Relating to A National Emergency Declared By the President on February 2019

Floor Speech

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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, each year, the Congress receives the President's budget request for the upcoming fiscal year, just as we did earlier this week.

Even though, in the President's budget, he outlines his priorities, my experience in the Senate is that most Presidential budgets, while they are an expression of the President's priorities, are dead on arrival. It then falls to us, in the Senate and the House, to look at his request and to work on a compromise budget and appropriations process and fund the operations of the Federal Government.

This process is arduous, it is time-consuming, and it is often frustrating, but it is the way the system is supposed to work. As all Americans can attest, what we have seen over the last few months looks like something very different. The refusal of Democrats in the House and the Senate to engage in negotiations on border security funding led us to a 35-day government shutdown.

Despite the clear message from border security experts, despite seeing the humanitarian crisis at the border, described by President Obama in 2014, get many times worse, our Democratic colleagues decided to play politics instead of dealing with the problem.

We heard the Speaker of the House call border barriers immoral. The minority leader here in the Senate said that there would be no additional money for physical barriers along the border. They know, just as I know, that back in 2006 and 2008, the Secure Fence Act was passed with broad bipartisan support, including support from then- Senator Barack Obama, then-Senator Hillary Clinton, and Senator Chuck Schumer, currently the Democratic leader in the Senate, who now feels that this President should not get any additional money to fund border security measures that the President believes are an important response to the crisis we see at the border.

My preference would be for the normal appropriations process to be used, but when your negotiating partners refuse to take a seat at the table, normal goes out the window. Our colleagues across the aisle left the President with few options to fund what he believed was so important for the Nation's security, and that is what led us to this situation.

Enter the 1976 legislation, the National Emergencies Act. What the President did is ask his lawyers to look at what other authority, under congressionally passed laws signed by previous Presidents, might he have to access additional funds, and his lawyers pointed to the 1976 National Emergencies Act, which has granted Presidents, since that time, broad powers to reprogram funding previously appropriated by Congress.

This idea that somehow this is an unconstitutional act by this President is simply wrong. Congress has given the President this authority. They may regret it today or they may disagree that this is an emergency or they may disagree with the way the President wants to spend the money to secure the border, but, clearly, the President is using authorities the Congress has previously granted, not just to him but to all Presidents since 1976.

My father liked to remind me growing up--one of the things he always told me is that hindsight is always 20-20. Our predecessors did not anticipate the fights we would be having today, which are largely contrived and unnecessary. We should be working together to solve these problems, not engaged in a zero-sum game of political brinkmanship. That is what brought us to where we are today.

I think it is appropriate to look at what Congress did in 1976, and in a prospective sort of way, ask ourselves: Have we delegated too much authority to Presidents since that time? There are literally 123 statutory authorizations that could be invoked under the National Emergencies Act--123 times that Congress has said a President, upon the declaration of a national emergency, can reprogram money that Congress has appropriated--123 times. That was a shock not only to me but, I dare say, to virtually all of our colleagues here in the Senate.

Many of these statutory grants of authority are exceedingly broad. They cover everything from the military to public health to Federal pay schedules. With these broad authorities already part of the law, the emergency powers provision could be viewed as a fail-safe for an agenda that the administration--an administration alone--is pushing. Let's say, hypothetically, that a future President decides there is a need to declare a national emergency over climate change. Maybe they decide this is a way to enact the Green New Deal being pushed by some of our colleagues across the aisle.

Considering the potential scope and scale in which these powers could be abused in the future and this overdelegation of authority that Congress has done 123 times, I believe we should take a look at the National Emergencies Act, once we vote today, and have a fulsome debate and discussion about whether this is really the sort of delegation of powers that the Founding Fathers intended when they said that distinct separated power should be given to each branch of the government: the legislative, the judicial, and the executive branch.

It is clear that the President is operating within the authority Congress has given to him. You don't have to like it. You don't have to agree with it, but it is clear the President is operating within the authority Congress delegated to him. Rather than talking in circles and debating that fact, I think our discussion should focus on the structure of emergency powers moving forward.

I believe there is a need to rein back in some of the authority that Congress has delegated to presidents just as a constitutional concern, as a constitutional matter, which is why I am cosponsoring a bill which has been introduced by our colleague Senator Lee which gives Congress a stronger voice in processes under the National Emergencies Act.

That bill will now be referred to the Homeland Security Committee. Chairman Johnson has said he will give that bill a hearing and then a markup. Then I would expect, at some point, that legislation will make its way to the Senate floor where we will have a debate and a vote.

The proposal would allow the President to maintain his statutory powers to declare an emergency, but that declaration would end after 30 days unless Congress affirmatively votes to extend it. This would maintain a President's ability to provide funding during national emergencies while restoring Congress's proper authority under article I of the Constitution. I think this is an honest and important effort to hopefully prevent us from ending up in this predicament in the future.

The real cause of where we are today is just politics--Ms. Pelosi's deciding that building any border barrier was immoral, after Democrats and Republicans had not made that a particularly political decision in the past. In fact, it had been bipartisan that we did support it as one tool in the toolbox for Border Patrol, in addition to technology and personnel, some physical barriers.

Rather than scolding the President of the United States for exercising statutory authority that Congress has already given, we should try to work together to solve these problems rather than engaging in the kind of political brinksmanship that brings us here today. We should fix--should it be the will of Congress--this massive delegation of authority not just to this President but to any President since 1976.

I have to disagree with our colleague from Colorado and others who suggest that what is happening at the border is not serious. By the way, I haven't heard any of them suggest any alternative solutions. Perhaps instead of Border Patrol securing the border we ought to have police officers at the border directing traffic, waving people through to their chosen destination. I think that would be a terrible mistake, but that seems to be the only alternative our friends across the aisle are offering to this humanitarian crisis and emergency at the border.

Last month, 76,000 people illegally crossed the border and were apprehended by U.S. Customs and Border Protection, making this an 11- year high. So rather than 76,000 people in 1 month, which our Democratic colleagues don't seem to think is a problem, let's say next month it is 150,000 or 300,000 or 600,000. As long as we have this attraction for people from other countries to come to the United States, and if they pay the fee to the criminal organizations that transport them here, they will successfully make their way into the United States. They are going to keep coming.

It is clear this problem isn't going away, and it is overwhelming the communities along the border as well as the Federal Government's ability to deal with it.

I remember what the Director of Customs and Border Protection said. He said: When the Border Patrol is handing out diapers and juice boxes to children coming across the border, the drug cartels will exploit that and move their poison into the United States. I will just remind my colleagues that more than 70,000 Americans died of drug overdoses last year alone. A substantial amount of it was synthetic opioids in the form of fentanyl, but a lot of it had to do with heroin that had made its way from Mexico into the United States because 90 percent of the heroin that comes into the United States comes from Mexico. So while the Border Patrol is handing out diapers and juice boxes, the drug cartels are moving in heroin, fentanyl, and methamphetamine across the border into our Nation and getting rich in the process.

We know border security is complicated, and that it is not just about security, it is about facilitating legitimate trade, travel, and commerce. Last year alone, there was $300 billion worth of commerce that took place just at Texas ports of entry with Mexico--$300 billion. That supports an awful lot of American jobs.

The terrain in the 1,200-mile border between Texas and Mexico varies significantly. What works well in one sector does not work well in another. What I continue to hear from my constituents, including elected officials at the border, is that if this is the Border Patrol telling us what they need in order to succeed to do the job we have asked them to do, we are all in, but if this is just politics and elected officials in Washington trying to micromanage the solution along the border, we are skeptical. This is what they tell me, and I don't blame them.

I think we need to take action to adequately fund our border security missions, and I hope our discussions in the coming months will be more productive than they will be this year.

I will vote against the resolution of disapproval today and encourage my colleagues to instead ask my colleagues to focus their energy on reforming the legislation that got us into this situation to begin with.

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