Floor Speech: Senator Lisa Murkowski Remarks On National Emergency Delcaration and Upholding Separation Of Powers

Thank you, Madam President.

Madam President, last week I announced my intention to vote in favor of House Joint Resolution 46. This is a resolution expressing disapproval of the President's February 15 proclamation of a national emergency. At that same time I joined with my colleague, the Senator from New Mexico along with the Senator from Maine, Ms. Collins, and the Senator from New Hampshire, Mrs. Shaheen, in the introduction of the Senate companion, Senate Joint Resolution 10. And I wanted to take just a few moments this afternoon and speak to my rationale for not only my statements but for my support for terminating the national emergency.

It is certainly not based on disagreement over the issue of border security on our southern border. I recognize full well along with, I believe, all of our colleagues here that the situation on the border is one where the humanitarian issues that face us, the issues that face us with the level of those coming across our borders, is not a sustainable situation and certainly the drugs, the influx of drugs we see in this community must be addressed. But rather my concern is really about the institution of the congress and the constitutional balance of powers that I think are just fundamental to our democracy. It really comes down, in my view, to Article 1, Article 1 of the Constitution. Article 1, Section 7, Clause 8 states no money shall be drawn from the treasury but in consequence of appropriation. And this provision along with the necessary clause of Article 1, Section 8, Clause 18 and the taxing and spending clauses Article 8, Clause 1 are just generally regarded as the basis for the notion that the power to spend resides in the Congress.

We say around here the power of the purse rests with the Congress. Of all of these three clauses that I have just articulated, the admonition that no money shall be drawn from the treasury but in consequence of appropriation is probably the clearest expression of the framers' view that the executive has no power to spend money in a manner that is inconsistent with the intentions of the Congress.

Justice Story in his 1883 commentary on the Constitution characterizes that clause as an important means of self-protection. He went on to say -- he says the legislature has and must have a controlling influence over the executive power since it holds at its command all of the resources by which the executive could make himself formidable. It possesses the power of the purse of the nation and the property of the people. So again, just very clearly articulating where these lanes of authority, these lanes of jurisdiction, reside.

This past weekend on Sunday, a local newspaper, the Fairbanks Daily News-Miner, published an editorial. In that editorial they argued that our colleagues here in the Senate should vote for the resolution of disapproval and the article or the editorial is entitled, A Dangerous Course: Congress shouldn’t cede power to the President in a border funding dispute. Madam President, I would ask unanimous consent that the editorial be included as part of the record.

Madam President, in support of that argument outlined in that headline, the News-Miner Editorial Board said as follows:

“Encroachment on one branch by another and consolidating of power of one branch worried some of the founders as they crafted our system of independent yet interlocking government branches. The ‘federalist papers’ contained references to that concern.”

 And then the editorial board goes on to refer to Federalist Number 51 that says, and I quote here:

“The great security against a gradual concentration of the several powers in the same department consists in giving to those who administered to each department the necessary constitutional means and personal motives to resist encroachment of the others. Ambition must be made to counteract ambition.”

So you translate that into just plain old English, and it basically is Congress is a coequal branch of government and as such, Congress should stand up for itself. And that really is the reason, the root of why I have announced my support for this resolution of disapproval.

I think it's fair to say that we all have disagreements around here about all sorts of things that are part of the appropriations process. And certainly the issue of border funding or just border security is no exception, even if the FY19 appropriations process had run smoothly, which it certainly did not but think about how we got to where we are right now.

The President submitted his budget last year. He requested money for barriers on the border and other aspects of border security. The request went through the appropriations process. I serve on that subcommittee. In the Senate subcommittee, we advanced out of the Committee the President's request. And then after three months of continuing resolutions, we ended up the year -- last year, calendar year 2018 in a stalemate with the other body.

In January, control in the other body changes. The stalemate continues until the lengthy negotiations concluded which allowed both bodies to pass, and the President to agree to sign, an appropriations package just several weeks ago in February. And that appropriations package, again, that was the result of -- I think it's probably fair to say a great deal of back and forth between the House, the Senate, and the White House. But it was clearly something that did help advance the priorities that the President has outlined with regards to the southern border. And I'm quoting from a White House fact sheet here where they state they, “secured a number of significant legislative victories that further the President's effort to secure the southern border and protect our country.” And chief among those victories was the bill providing $1. 375 billion for approximately 55 miles of border barrier in highly dangerous and drug smuggling areas in the Rio Grande Valley where it's desperately needed.

So again, quoting that from the White House fact sheet. So we are -- we are where we are -- where we were in February, February 15 when the Administration recognized that significant gains had been made but I think we all know that the President believes very, very strongly that there is more that should be done, that must be done, and that will be done to address that. And so clearly there was a disagreement between the Congress and the President about how much could be spent on border security in 2019, but in fairness, to say that sticking up for Congress' power of the purse didn't necessarily mean that that comes at the expense of border security.

I believe very strongly we can address the President's concerns, the very, very real and legitimate concerns that need to be addressed, but we don't have to do it at the expense of ceding that power, that Article 1 power that we have here. There are ways that the President can advance his issues, and has done so. He certainly has the prerogative to ask for supplemental appropriations. He has asked. He has identified additional funding that is outside the national emergencies designation or declaration, if you will. He's identified additional funding, close to $3 billion from other statutory authorities. These are the authorities under 10u. S. C. 1040-b which is the counterdrug funds that will require a level of reprogramming through the appropriating committees. But that can be done outside of national emergency.

And then the other source of funding is the Treasury Forfeiture Fund through the Secretary of the Treasury under 31u. S. C. 9705. So I think it is clear that there are avenues to enhance the funding opportunities for more to address the situation at the border. The concern that many of us have raised is the designation in this third account, designation of a national emergency that would tap into funds that have already been designated for military construction projects, important construction projects that have been designated around the country. We certainly have many in my state of Alaska. We haven't seen that list that would perhaps outline with greater articulation where the Secretary of Defense might think it would be appropriate to delay some of these projects. But again, I would just remind, these were projects that have perhaps been already delayed because of the Budget Control Act that has been in place for several years. So further delay for many of these projects, I think, would cause most concern.

So I come then to the National Emergencies Act. I think there is a recognition that when this was adopted, was put into law, it was initially intended to rein in the President's ability to declare emergencies, but at the same time it authorized the President to declare national emergencies. It didn't ever define, clearly define the extent of that power. And so that is an issue that I think we are dealing with right now. Implicit in this grant is the fact that this power would be used sparingly. If you look back over history, the 59 times these powers have been utilized, you can say that it's been used sparingly. But also explicit is the authority for the Congress to terminate an emergency if the Congress believes that it was imprudently declared. And that is basically where we are here today. Because Congress did not explicitly constrain the President's power to declare an emergency, many of the constitutional scholars, those who are trying to game this out, believe that the president will ultimately prevail in the litigation that we're entirely certain will be seen in the courts.

The question really for us to consider in this body is not whether the president could have declared an emergency but should he have declared. And, again, the question, as it relates to the redirection of military construction funds from our bases around the country to the southern border, these are -- these are the questions that we are debating currently. But in the final analysis, I look at the issue we have in front of us and this really -- a very challenging place for us as a Congress. To be debating the constitutional powers of the Congress against a legislative agenda, a strong legislative agenda and an important one that the president has. But I have come to be quite concerned about where we are when it comes to precedent and the precedent that we may see unleashed.

In many ways, I view this as an expansion of executive powers by legislative acquiescence. If we fail to weigh in, if we fail to acknowledge that this designation has gone beyond that which has been previously considered, if we go around, effectively, the will of Congress, where does it take us next? And I think we need to think about that because it's so easy to just get focused on where we are in the here and now. What is the situation that we are dealing with today? But when we are pushing out those lanes of Congressional authority, I think we need to be thinking clearly about what that may mean for future Administrations, for future Congresses.

And so I, as the Chairman of the Energy Committee-- my focus is very often on the energy sector, on the energy space. And so I’ve asked, if we were in a situation with a new president, what could be invoked if a new president should decide to exercise his or her emergency authorities as they relate to energy? And it's entirely possible that a future president could declare a national emergency related to climate change, speaking to humanitarian crisis, what it might mean for national security, and in fact we -- one of our colleagues from Massachusetts has already said as much; that a national emergency could be declared as related to global warming climate change.

 And so you have to ask the question, what would stop a future president from declaring an emergency and then directing the military to spend billions of dollars on -- whether it's renewable projects or whether it is refugee assistance? What's to stop the future president from targeting the nation's oil and gas supply by cutting off exports and shutting down production on the outer continental shelf?

I think we'd all look and say, well, we don't need to worry about that happening with our current president. He's not going to do any of those things. But the authorities, technically would exist for them. So, it's concerning for me that a future president could use them to drive their agenda, again without the consent of the Congress. So, again, I repeat, I'm concerned that as a Congress, as a legislative body, we would stand back, we would acquiesce in the use of national emergency to resolve a disagreement between the executive and the legislative branches over the appropriate level of funding for a situation that likely exceeds what can be spent in our current fiscal year.

So, I know that there will be continued discussion, not only here in the Senate, in the Congress, but certainly around the country about these matters. I know that some of my colleagues are interested in revisiting the scope of the National Emergencies Act. That's clearly worth considering.

But I firmly believe that one can be for border security, strongly for border security, and at the same time question whether the Administration has overreached in using the National Emergencies Act in the way that it has. And I find myself in that cam, and so it is with great resolve that I support the adoption of the resolution of disapproval.

With that, Madam President, I yield the floor.