Terminating the National Emergency Declared with Respect to Energy

Floor Speech

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Mr. SCHIFF. Mr. President, I rise today to bring before the Senate a resolution concerning one of our most serious constitutional responsibilities: whether the United States should engage in armed conflict against a particular adversary.

The Constitution clearly and intentionally places the power to declare war in the hands of this body, the Congress, not with the President or the executive branch. Our Constitution's Framers, having just endured a war and having paid the toll that war always takes, wanted to ensure that our newly independent Nation would see the representatives of the people make the decision of whether and when to put American lives on the line.

In 1798, James Madison wrote to Thomas Jefferson about the danger of leaving that power in the hands of an executive.

He said:

The Constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the Legislature.

For the past month, Congress's power to authorize or refuse to authorize the use of power has been usurped by the Executive. This administration has carried out at least four military strikes against vessels that it asserts have ties to drug trafficking organizations. These strikes were not authorized by Congress. Congress has not been shown the evidence of who exactly was on board these ships, whether they were all headed to the United States or some other destination, or whether they posed an imminent danger of attack on the United States. Such strikes are not legal, and they are not made legal or constitutional by the claim--correctly or incorrectly, with or without evidence--that some or all of the occupants of these boats belong to a list of organizations kept secret by the administration.

Being put on a list by the executive branch does not deprive Congress of its vital role in approving the use of force, but such a list kept hidden from the American people, if used as a justification, may drag our Nation into an unintended war.

If it were as simple for a President--any President--to claim that war power for himself by placing an individual or a group of individuals on a list, let alone one held in secret, there would be no limiting principle to the executive's use of force--no limits whatsoever--and that is deeply inconsistent with the intent of our Framers' and the desire of the American people to be kept out of unnecessary military conflicts.

Indeed, the President has confirmed that he does not see a limit. He saw targets at sea, and now he sees potential targets on land.

Now, I know that the word ``unprecedented'' gets used so much these days that perhaps it has lost some of its value, but we need to put in context just how far from normal these strikes are.

For perhaps the first time in our history, a President of the United States ordered the U.S. military to use lethal force against individuals who posed no imminent threat of attack and who could have been stopped thousands of miles from our shore had we interdicted and arrested those on board just as they routinely are by our Coast Guard. Instead, the U.S. military used lethal force on four separate occasions, killing everyone on board.

Despite this breathtaking departure from more than two centuries of law and practice, we still know almost nothing about these strikes, some taking place as far as 2,700 miles away. It may be that there were narcotics traffickers on board some or all of these vessels. It may also be that some of these boats were being used for human trafficking and that the victims of that offense were killed along with the perpetrators, or, if not on one of the first four ships destroyed, then perhaps on the next one.

The lack of detail concerning these strikes is telling. We have learned of these strikes through social media posts from the President, the Secretary of Defense, and from the press. In fact, administration officials have offered differing accounts of where these vessels were heading. Media reports have suggested--without rebuttal from the administration--that the first vessel to be struck had turned around prior to being hit. The Secretary of State originally claimed that one of the boats wasn't even heading to the United States.

Given our Coast Guard presence in the region and with a sizable Navy deployment and expansive intelligence resources, U.S. personnel could have boarded all of these vessels, detained those aboard, seized any drugs or cash, and gathered additional information about ties to drug trafficking organizations, just as they normally do. Secretary of State Rubio even acknowledged publicly that this could have been done but said that the President wanted to send a message by killing all of those on board.

We all agree that the scourge of drugs is real and that scores of Americans die from such poison every year. We are all committed on both sides of the aisle to battling the importation of illegal drugs, even as we work to beat back addiction here at home. But we are also committed to our Constitution, to a system of checks and balances that wisely places the power to make war in our hands, not with an Executive who may grow too fond of using it.

That is why Senator Kaine and I have introduced a resolution to direct the President to stop engaging in armed strikes against these vessels or the country from which they emanate without the explicit authorization of Congress. We are here today to ask our colleagues to join us in this nonpartisan vote, in this affirmation of Congress's authority to declare war or to refuse to declare it; to authorize force or to refuse to authorize it.

We have been precise and deliberate in crafting it. This resolution does not affect the United States' ability to target terrorist groups covered by Congress's existing authorizations to use military force, including al-Qaida, ISIS or its affiliates and offshoots, or to address real threats posed by other groups, like the Houthis. It also in no way limits the United States' ability to defend our own citizens and interests or to come to the collective self-defense of our allies and our partners.

It comes down to this: The President has used our military to strike unknown targets on at least four occasions, and he is promising more. With at least 21 people dead and more killing on the way and with the President telling us that strikes on land-based targets may be next, we ask you to join us in reasserting Congress's vital control over the war power.

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Mr. SCHIFF. Mr. President, let me just take this opportunity to address some of the remarks of my colleague who has, I think, rightly pointed out the horrors of drug trafficking and those that are engaged in that poisonous, deadly trade. I agree with that, and we should do everything we can to fight back against those who are trying to traffic that poison into this country. And I agree with him about the murderous dictator that is Maduro.

But here is the thing. If my colleagues in this Congress want to go to war with Venezuela, if they want to use military force to bring about regime change in Venezuela, or if they want to wage a literal war using the military and armed force to blow up traffickers, then they need to come to Congress and seek an authorization to use military force for that purpose because our Constitution is clear.

There are, essentially, three circumstances in which we can constitutionally use force. One is if Congress declares war. We have not declared war on Venezuela. We have not declared a literal fighting war using military troops either.

Or we authorize the use of military force. We have not done so.

Now, the third circumstance in which a President is authorized to use force is in the event of imminent threat of attack from our adversaries. And that is simply not the circumstance here.

Instead, what the administration seems to be relying on is a claim that it has the power, somehow, to put organizations on a list and go after them wherever they may be, without the approval of Congress. That is what this resolution is about.

Now, my colleague also made an argument about the Houthis. Nothing in this resolution affects the ability to defend ourselves from the Houthis as necessary. The President and the former Presidents who have taken action against the Houthis have not done so on the basis of the Houthis being added to some list. Being added to a list, even the foreign terrorist organization list, empowers an administration to put sanctions on that organization. But being placed on a list by the Executive does not give any greater authority to use armed force against an organization.

The basis in which this President and previous Presidents have used force against the Houthis is the Houthis have attacked us, and if the Houthis attack us again, the President will have the article II power to defend ourselves. And nothing in this resolution touches that in any way, shape, or form.

But let me just underscore the perils of what we are discussing today. Now, this is an article that just came out. I haven't had the chance to vet it: ``Colombia president claims U.S. bombed Colombian boat in strike off Venezuela.''

So I don't know whether we have now struck a Colombian ship or what the circumstances were or who was on board, and that is exactly the problem. That is exactly the problem. Now, maybe this is real and maybe it isn't, but the fact that we don't know, the fact that the Executive asserts the authority to blow up ships without coming to Congress for the authorization of that kind of force could invariably lead to mistakes, could also lead, inadvertently, to war with another country.

This resolution says: If you want to use force against narcoterrorists by blowing up ships, come to Congress for an authorization because at this point you don't have it. If there is an imminent threat of attack, you have all of the authority you need under article II. But if you want to engage in a war with Venezuela or a regime change with Maduro and you want to use military force to do it, you need to come to Congress for an authorization. There being none, these strikes are unconstitutional and unlawful.

I would urge my colleagues to join Senator Kaine and myself in supporting this resolution.

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