In response to the Advocate Editorial Board’s opinion column entitled, “Do Louisiana senators value the Constitution? If yes, nix Trump's wall emergency,” allow me to set the record straight. To evaluate President Donald Trump’s declaration, I considered three key questions regarding the law and the facts on the ground: 1) Does the president have the authority to declare an emergency? 2) Is there an emergency? 3) Can the president reprogram funds for security measures, including physical barriers?
Congress passed the National Emergencies Act in 1976 to define the president’s authority to declare national emergencies. Under the law, the president must specify which emergency authorities he is invoking, publish the proclamation of a national emergency in the Federal Register and transmit it to Congress, maintain records and transmit to Congress all relevant rules and regulations, and identify the dollars spent as a result every six months. So far, the president has fully followed these requirements.
The law allows the president to determine when there is a national emergency and does not require congressional approval. This law has been used nearly 60 times in the last 43 years, and by every president. No one ever argued the president didn’t have the authority to do so.
The next question is whether the current situation at our southern border qualifies as an emergency. The law does not define what qualifies as a national emergency. Courts have the responsibility to consider the plain meaning of the word "emergency," and take into account past examples of the law’s implementation and interpretation. The U.S. Supreme Court ruled in 1975 that illegal immigration creates “significant economic and social problems.”
This is even more obvious today. Each year across America, 60,000 of our fellow citizens die from drug overdoses. In addition to drugs, our law enforcement officers on the southern border are struggling to stop widespread sex trafficking, cartel operations and illegal crossings by unknown foreign nationals. The numbers are astonishing: 2,000 people are apprehended every day at our southern border. Since October, U.S. Border Patrol has apprehended more than 268,000 individuals — a 97 percent increase from the previous fiscal year. Recent headlines in The New York Times and The Washington Post report the border is at a “breaking point” and the “crisis” is real.
The final question is about funding. Under the law, the president has the authority to reallocate certain funds without congressional approval in emergency situations. The president invoked military construction authority granted by one law (10 U.S.C. § 2808) and the White House also identified funds to build the border wall under another law (10 U.S.C. § 284). In the most recent appropriations bill passed by Congress in February, Democrats in the House and Republicans in the Senate could have limited the president's use of these statutes and funds for this purpose, but did not to do so. This is important, because in the past Congress has specifically stated that money cannot be used for some purposes. Again, Congress did not do this regarding funding for building barriers on the southern border.
Given the facts, there is no question that the Trump administration’s actions are lawful and constitutional. If Congress wants to change the law to prevent real or perceived presidential overreach in the future, it can — and indeed that is an ongoing discussion.
My responsibility is to the Constitution, the rule of law, and the security of our country. That is why I am voting in support of President Trump’s action.
Republican Bill Cassidy of Baton Rouge is one of Louisiana's U.S. senators.