Grassley, Ernst can show they're serious about executive overreach

The U.S. House voted on February 26 to terminate President Donald Trump’s declaration of a national emergency to build a wall that Congress repeatedly declined to authorize or fund. All 232 Democrats present, including Iowa’s Representatives Abby Finkenauer (IA-01), Dave Loebsack (IA-02), and Cindy Axne (IA-03) backed the resolution, joined by thirteen House Republicans (roll call). Representative Steve King (IA-04) was among 182 Republicans who opposed the joint resolution.

In statements enclosed in full below, Finkenauer, Axne, and Loebsack highlighted the need to defend the checks and balances prescribed by the U.S. Constitution, which grants spending power to Congress.

The National Emergencies Act requires a U.S. Senate vote within eighteen days on any House-approved joint resolution to terminate a presidential declaration. Three Senate Republicans have already pledged to vote for the resolution. More than half a dozen others criticized Trump’s decision and seem open to formally rejecting it.

Senators Chuck Grassley and Joni Ernst are not seen as potential supporters of this bipartisan effort. They have never defied the Trump administration and had little to say about the president’s power grab. But given their stature in the Republican caucus and their forceful denunciations of President Barack Obama’s executive actions, Iowa’s senators have an excellent opportunity to show some principles matter more to them than political loyalty.

Luke Hartig explained at the Just Security blog,

President Trump’s national emergency declaration lays out three sources for the funding he intends to use for the border wall. The first two sources — $600 million from a Treasury asset forfeiture fund and $2.5 billion from Department of Defense (DOD) counter-narcotics accounts — are not contingent on the emergency declaration. The third source of money, $3.6 billion from military construction accounts, is the one that draws on the emergency declaration authority and requires the concurrent deployment of U.S. military forces to the border to open up the account.

As Bleeding Heartland discussed here, Ernst had no official comment about Trump asserting his power to redirect funds Congress appropriated for other purposes. Grassley had warned in January,

“The president is threatening emergency action, a national emergency declaration. I don’t think he should do that. I think it’s a bad precedent. And it contravenes the power of the purse that comes from the elected representatives of the people,” […]

But after Trump pulled the trigger, Grassley expressed only mild “concerns about the precedent.” He told reporters, “I wish he wouldn’t have done it,” but punted the question about presidential authority to the courts. UPDATE: Bloomberg’s Sahil Kapur quoted Ernst as saying on February 26, “I am leaning no on the resolution of disapproval,” because “We do have a crisis at the border.” Grassley told Iowa reporters on a February 27 conference call, “I’m leaning towards voting against the disapproval resolution. And I could maybe say I’m leaning quite heavily in that.”

Iowa’s senators would be smarter to stand up to Trump’s lawlessness. Consider:

  • As a U.S. Senate candidate in early 2014, Ernst criticized members of Congress who were “not defending the Constitution” and “not speaking out against the president when he oversteps his bounds, when he makes those [recess] appointments, when he’s appointing czars, when he is producing executive orders in a threat to a Congress that won’t do as he wishes. So he has become a dictator.”
  • Delivering the Republican response to Obama’s State of the Union address in January 2015, Ernst promised the new Republican majority in the Senate would “work to correct executive overreach.”
  • Grassley has long been seen as a vigorous defender of Congressional authority. A Senate floor speech in November 2014 laid out an extended case against Obama’s “abuse of executive power” and disregard for “our system of checks and balances” on several fronts. Excerpts:

    But the core issue is this: under our Constitution, the Congress makes the law. And under Article II, Section 3, the President is charged with taking care that these laws are faithfully executed. […]

    It is no exaggeration to say that the freedom of the American people is at stake. That’s what the Framers believed. In Federalist 51, James Madison wrote that the “separate and distinct exercise of the different powers of government” is “essential to the preservation of liberty.” […]

    Let’s go back to the bedrock principles of our country’s founding. The Framers of our Constitution knew an abusive executive when they saw one. They sent the Declaration of Independence to a King who had ignored and abused their legislatures and laws.

  • Grassley and Ernst both denounced Obama’s executive actions on gun control in early 2016. Ernst slammed the “top-down approach that sidesteps Congress and the people we were elected to represent,” while Grassley said, “This is exactly the deliberative process the Founding Fathers entrusted to the Legislative branch of government, not the political agenda of one person.”
  • In a December 2016 Senate floor speech, Grassley asserted,

    The common thread in all this is that the Obama administration frequently failed to take care that the laws be faithfully executed, as is required by our Constitution. And when that doesn’t happen and Congress lets a president get away with it, then we aren’t upholding our oath to the Constitution, which says basically that Congress passes the law. They ought to be a check on the executive branch to see that the laws are faithfully executed. So, a person coming to town to “drain the swamp,” a person by the name of Trump, should prioritize these failures and begin to restore the executive branch to its proper place in government consistent with the checks and balances outlined in our Constitution.

  • In the coming weeks, Iowa’s senators have a chance to show whether their professed commitment to the Constitution is a core value or only a rhetorical weapon to use against Democratic presidents.

    Statement released by Representative Abby Finkenauer on February 26:

    “The Constitution gives the power of the purse to Congress. By trying to go around Congress and repurpose funds meant for military readiness and our troops, the Administration is defying the Constitution and violating our system of checks and balances. Republicans and Democrats joined together today to make clear that we in Congress take our responsibilities under the Constitution seriously and that this emergency declaration should not stand.”

    Statement Representative Cindy Axne provided to Bleeding Heartland on February 26:

    “President Trump’s emergency declaration proclamation sets a dangerous precedent and clearly violates Congress’s exclusive power of the purse. Congress has a responsibility to uphold the Constitution and defend our system of checks and balances.”

    UPDATE: Staff sent this statement from Representative Dave Loebsack on February 27:

    “The President’s move to declare a state of emergency sets a bad precedent and may very well be unconstitutional. Now that the House has made its position clear, instead of wasting time and taxpayer dollars dragging this through the courts, it would be best for the President to put aside his political games and work with Congress. There are many issues that are important to the American people, like creating jobs and growing the economy, that must be addressed. I stand ready to work with anyone to secure the border in a way that is smart and effective.”

    SECOND UPDATE: An Iowan shared the response she received after contacting Grassley’s office about this issue.

    Thank you for taking the time to contact me. As your senator, it is important that I hear from you.

    I appreciate hearing your thoughts regarding the recent standoff to provide federal funding for building a wall at our southern border, and President Trump’s subsequent declaration of a national emergency.

    I believe that before Congress even considers a comprehensive change to our nation’s lawful immigration system, which I am in favor of, it is imperative that we secure our borders and achieve meaningful interior enforcement. Securing our borders is a necessity to ensure the highest degree of safety and security for U.S. citizens. I support increased border enforcement measures by increasing federal law enforcement agents and providing funding for fencing, technology, and other forms of infrastructure.

    There is robust data to support the construction of a wall. According to the Department of Homeland Security (DHS), in El Paso, the wall was built in 1993, and illegal border crossings dropped 72% over 1 year and 95% over 22 years. In Tucson, after the construction of the wall in 2000, illegal traffic dropped 90% over 15 years. Further, in Yuma, following the construction of the wall in 2005, illegal traffic dropped 95% over 4 years.

    Senators and congressmen understood the value of these statistics – which is why they passed the bipartisan Secure Fence Act in 2006. It required DHS to achieve and maintain operational control of the border. This included the deployment of surveillance technology, unmanned aerial vehicles, ground-based sensors and cameras, and physical infrastructure. The Department invested $2.3 billion to construct approximately 515 miles of border barriers, which resulted in a total of 654 miles being built. This resulted in 354 miles of pedestrian barrier, and 300 miles of vehicle barrier. Although the U.S. Customs and Border Protection (CBP) received some funding between 2008 and 2016 to replace certain border barriers, no funding was provided to expand the border wall in operationally necessary locations.

    DHS has also made it very clear that there is not going to be a physical barrier for all 1,954 miles of the southern border, and that President Trump’s budget request is not for the entire structure. In fact, as of January 2017, there was already 654 miles of physical barriers in place, with more than 115 miles either already on-going or planned coming from FY17 and FY18 funding. President Trump’s request for $5.7 billion is for the construction of approximately 234 miles, which includes a new primary pedestrian wall system, a new secondary wall in three different sectors, and new primary walls in place of less effective pedestrian and vehicle barriers in multiple sectors. The $5.7 billion would support construction of more than 100 miles of primary barrier in the Rio Grande Valley Sector – which is CBP’s highest priority of investment.

    In response to the recent shutdown, on January 25, President Trump announced that he reached an agreement with Congress, H. J. Res 28, which funded the government with a three week continuing resolution until February 15. As part of the agreement, a bipartisan, bicameral committee negotiated a border security deal. Federal employees affected by the shutdown returned to work and received back pay.

    Following negotiations, Congress passed, and the President signed, H.R. Res. 31, which funded the agencies that were operating on a short term continuing resolution until the end of the fiscal year. Part of the negotiated bill includes $22.54 billion for border security, which includes investments in physical barriers, law enforcement personnel, custody enhancements, humanitarian needs, and counter-narcotics and counter-weapons technology. Also included in the bill is $1.375 billion to construct 55 new miles of physical barriers along the U.S.-Mexico border in CBP’s highest priority areas, an increase of 200 border patrol agents above the Fiscal Year 2018 level, $615 million for new equipment at ports of entry, 600 new customs officers, and increased detention capacity at ICE facilities with no limitations on interior enforcement operations. Further, the compromise bill includes President Trump’s request to support nearly 5,000 additional beds to detain illegal aliens in ICE detention centers. I was also happy to support $132 million for E-Verify operations and enhancements which will address issues of employers hiring illegal immigrants.

    Although Congress reached a bipartisan compromise, no bill is perfect. Congress has a responsibility to find compromises that keep the government funded and address the issue facing our country, which is why I voted in favor of H.R. Res. 31. However, the bill did not provide the $5.7 billion President Trump requested for the construction of a border wall on the U.S.-Mexico border. Therefore, on February 15, President Trump declared a national emergency to combat the ongoing crisis unfolding at our southern border.

    I have heard from Iowans who support and oppose President Trump’s decision to declare a national emergency. The President is using his authority under the National Emergencies Act of 1976 to address the crisis at the U.S.-Mexico border. Since 1976, U.S. Presidents have declared nearly 60 national emergencies, and we currently have 31 ongoing national emergencies – not including the most recent one. President Trump’s declaration includes invoking two of the more than 100 available statutes – the first being 10 U.S.C. § 12302, which authorizes DOD officials to order the Ready Reserve to active duty to address a national emergency, and the second being – 10 U.S.C. § 2808, which authorizes the Secretary of Defense to direct military construction necessary to support the use of the Armed Forces in connection with a “national emergency… that requires use of the armed forces.”

    President Trump also invoked two other statutory authorities to use funds regarding the ongoing crisis at the U.S.-Mexico border. This includes using funds available under 10 U.S.C. § 284(b) to block drug-smuggling corridors across international boundaries. Additionally, funds will be made available under 10 U.S.C. § 284(b)(7), which authorizes the military to construct “fences and road and [install] lighting…to block drug smuggling corridors across international boundaries of the United States” upon request from the responsible agency. In the past, Presidents George W. Bush and Obama both directed the military to assist DHS in securing and managing the southern border. In addition, both U.S. Presidents used the authority under the National Emergencies Act 18 times to fund various projects between 2001 and 2014.

    According to the administration, it has identified up to $8.1 billion that will be available to build the border wall. This includes the $1.375 billion appropriated by Congress, $3.1 billion under other statutory authorities, and $3.6 billion in military construction funds available under a national emergency. The Trump administration has stated that the funding “will be used sequentially as needed” meaning that the appropriated funds from Congress will be used first, then the $3.1 billion from other statutory authorities, and then the $3.6 billion from military construction. Only the $3.6 billion from the military construction projects fall under the emergency declaration. With regard to the $3.1 billion made available under other statutory authorities, there is $601 million available from the Treasury Forfeiture Fund. The Secretary of the Treasury is authorized to use funds to support law enforcement activities within the Treasury Forfeiture Fund which are not reserved for other purposes. Of the $601 million, $242 million will be made available immediately, while $359 million will be made available from future anticipated forfeitures. Further, up to $2.5 billion will be made available from the Drug Interdiction and Counter-Drug Activities account which is under the Department of Defense (DOD). Under a President’s declaration of a national emergency, the DOD is authorized to “undertake certain military construction projects” and stated that, it will be ensuring “that high-priority projects with national security implications remain funded.”

    On February 26, the House passed H.J.Res.46, which would terminate President Trump’s declaration of a national emergency. I have stated numerous times that I have concerns regarding the precedent this could set with the declaration of a national emergency to re-appropriate funds. Accordingly, I intend to continue to study the President’s declaration closely. It is clear that the Constitution grants Congress the authority to appropriate federal dollars, so I’m sure this will be ultimately decided in the courts.

    I remain committed to working with my colleagues on solutions to secure our border while ensuring that individuals enter our nation in a legal manner and respect our laws.

    Oversight is one of the most critical functions and important constitutional responsibilities of Congress and brings much needed accountability. Please rest assured that any money the President uses to fund the border wall will be scrutinized to ensure it isn’t being wasted or abused.

    Again, thank you for taking the time to contact me. I encourage you to keep in touch.

    Chuck Grassley
    United States Senate

    Seth Boyes of the Dickinson County News reported more of Grassley’s comments on February 26.

    Texas Rep. Joaquin Castro introduced a bill Friday meant to end the president’s declared national emergency. Grassley said, if a similar vote should come up in the Senate, he feels more likely to vote in support of President Trump.

    “On the other hand, I don’t know why the president creates all this trouble for himself,” Grassley said.

    He went on to say the National Emergencies Act, which was passed by Congress in 1976, delegated too much of Congress’ power to the White House.

    “I think we tend to blame the president, when you need to blame the Congress of the United States for passing too liberal of legislation,” he said.

    Grassley represented Iowa’s third district in the U.S. House at that time. He voted for the National Emergencies Act, which passed by 388 votes to 5.

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