Press Releases

            Washington—Senator Dianne Feinstein (D-Calif.) today released the following statement on the Senate’s vote to disapprove of President Trump’s national emergency declaration:

            “President Trump’s national emergency declaration – which he attempts to justify using falsehoods about immigration and the Southern border – presents a serious threat to the separation of powers and the rule of law.

            First I’d like to speak about how there really isn’t an emergency at the border, then I’d like to get into the constitutional problems with the president’s actions.

No crisis

            While illegal border crossings do occur, all of the numbers refute President Trump’s claim that there’s a crisis at the border. Those claims simply don’t hold up.

            Unauthorized border crossings have been at their lowest levels in years.

  • In 2000, border agencies reported more than 1.6 million apprehensions.
  • In 2017, the agency reported just 303,916 apprehensions, one-fifth of the level just two decades ago.

            It’s clear that investments in border security have worked. Those include additional border patrol agents, fencing in urban areas, ground sensors, drones and increased use of E-Verify.

            In addition, since 2014, two-thirds of undocumented immigrants have come to the United States legally but then overstayed their visas – more than 500,000 per year. A border wall would do nothing to curb visa overstays.

            Dangerous criminals aren’t overrunning our country.

            Immigrants commit fewer crimes than native-born citizens. Data collected in Texas show the arrest rate for undocumented immigrants in 2015 was 40 percent lower than for the native-born population.

            Additionally, many immigrants are actually legally seeking asylum through the process already in place. There are often families with young children fleeing persecution and violence in Central America who have a legal right to petition our government for asylum.

            Under current law, they can apply for asylum by presenting themselves at a U.S. port-of-entry. Unfortunately, by focusing on a border wall instead of investing in modernizing entry points, President Trump’s policies force many of these families to turn themselves into Border Patrol in between ports and ask for asylum or wait for long periods in Mexico in dangerous conditions.


            The timing of the president’s declaration also undercuts his claim that this is an emergency.

            President Trump kicked off his presidential campaign nearly four years ago by claiming that immigrants were bringing drugs and crime to the United States. Despite this, he decided to wait until more than halfway through his term to declare his emergency, and only then after Congress refused to give him the money he wanted.

            If there were truly an emergency, the president should have declared it on Day One. He did not.

            Trump also emphatically rejected a bill that would have given him $25 billion for a border wall in exchange for providing Dreamers a path to citizenship. Clearly there was no emergency then either.

            But the most clear statement that there is no emergency came from President Trump himself, who after declaring the emergency, said this in a Rose Garden speech: “I didn't need to do this, but I'd rather do it much faster.”

Constitutional issues

            We shouldn’t judge the president’s attempt to divert appropriated funds to his border wall through a partisan lens, but rather view it as a radical departure from our constitutional separation of powers.

            Through its Appropriations Clause, the Constitution provides Congress, NOT the president, with the power of the purse. Congress decides how to spend taxpayer dollars.

            By providing Congress with this power, our founding fathers imposed a key check on the president – a check that President Trump is trying to do away with.

            Congress exercised its power of the purse last month in a spending bill to keep the government open by including $1.35 billion for border barriers – rather than the $6 billion the President sought for a border wall.

            The Constitution gave the president two options at that point: sign the bill or veto it. President Trump tried to create a third path, saying he would sign the bill but still divert additional federal dollars to the wall, his so-called emergency.

            In essence, the president decided to violate the Constitution so he could more quickly fulfill a campaign promise to build his border wall.

Diverting funds

            One of the ironies of President Trump’s decision to divert funds to a border wall that won’t stop drugs or crossings is the pots of money from which he’s drawing.

            First, the White House said it would pull $2.5 billion from a counternarcotics program that is used to support international law enforcement interdiction and apprehension efforts as well as to fund National Guard support for State drug law enforcement operations, including in California.

            And second, the White House said it would take another $3.5 billion from military construction projects.

            These are programs that actually help improve our national security, and the president wants to take billions of dollars from them to build a wall. Incredible.

National emergencies

            The long-term danger here is that President Trump will set a precedent that a commander-in-chief can interpret the nation’s laws and the Constitution any way he wants. This can’t be allowed to stand.

            The National Emergencies Act of 1976 does allow the president to reprogram funds appropriated by Congress in case of a national emergency, like a hurricane or earthquake. But it’s clear that the law was never intended to be used to explicitly overrule the will of Congress, which is how President Trump wants to use it.

            During the Korean War, the Supreme Court struck down a similar attempt by President Truman to use emergency powers to seize privately-owned steel mills, an action inconsistent with laws passed by Congress. 

            Even if there were an emergency – which there isn’t – President Trump still wouldn’t have the authority to reprogram federal funds in this context.

            Specifically, the statute that President Trump relies on, 10 U.S.C. § 2808, allows the president, in a national emergency that “requires the use of the armed forces,” to spend unobligated military construction funds for military construction projects “that are necessary to support ... use of the armed forces.”

            The situation at the border does not “require the use of the armed forces,” and it’s unclear how the wall would be “necessary to support” them.

            If anything, the president’s use of the military at the border to enforce the law raises additional questions under the Posse Comitatus Act, which has prohibited the use of the armed forces for domestic law enforcement for well over a century.

            In sum, President Trump is relying on an incredibly frail legal argument to justify this blatant power grab. It’s incumbent upon Congress to hold this president accountable as he attempts to seize one of our most important powers.”