Thursday, August 3, 2017

President Trump's Constitutional Signing Statement on Russia-Sanctions Bill

President Trump signed the Russia-sanctions bill yesterday, but issued a sweeping constitutional signing statement calling out the "clearly unconstitutional provisions" in this "significantly flawed" legislation.

While the wide-ranging statement says that the President "favor[s] tough measures to punish and deter aggressive and destabilizing behavior by Iran, North Korea, and Russia," it also guts efforts to hold the President's feet to the fire and suggests that the President may enforce the measures (or not enforce them) nearly any way he wants. In short, given the breathtaking sweep of the statement, only time will tell whether and how the President executes the bill.

The last paragraph sums it up:

Finally, my Administration particularly expects the Congress to refrain from using this flawed bill to hinder our important work with European allies to resolve the conflict in Ukraine, and from using it to hinder our efforts to address any unintended consequences it may have for American businesses, our friends, or our allies.

The bill, H.R. 3364, adopts several measures to keep the President on a tight leash with regard to actual enforcement of Russian sanctions and related actions. President Trump identified those specifically. Here's a summary:

Sections 253 and 257: Recognition of Foreign Territorial Changes Effected by Force in Violation of International Law

President Trump argued that these provisions "displace the President's exclusive constitutional authority to recognize foreign governments, including their territorial bounds, in conflict with the Supreme Court's recent decision in Zivotofsky v. Kerry."

Section 253, titled "Statement of Policy," says that "[t]he United States, consistent with the principle of ex injuria jus non oritur, supports the policy known as the "Stimson Doctrine" and thus does not recognize territorial changes effected by force, including the illegal invasions and occupations of Abkhazia, South Ossetia, Crimea, Eastern Ukraine, and Transnistria."

Section 257 deals specifically with Ukraine and says that it's "the policy of the United States to support the Government of Ukraine in restoring its sovereign and territorial integrity; to condemn and oppose all of the destabilizing efforts by the Government of the Russian Federation in Ukraine in violation of its obligations and international commitments; to never recognize the illegal annexation of Crimea by the Government of the Russian Federation or the separation of any portion of Ukrainian territory through the use of military force; to deter the Government of the Russian Federation from further destabilizing and invading Ukraine and other independent countries," among other things.

Section 216: Congressional Oversight and Disapproval of Executive Actions with Regard to Sanctions

President Trump argues that "section 216 seeks to grant the Congress the ability to change the law outside the constitutionally required process" in conflict with INS v. Chadha. In particular, the provisions "purport to allow the Congress to extend the review period through procedures that do not satisfy the requirements for changing the law under Article I, section 7 of the Constitution." But the President "nevertheless expect[s] to honor the bill's extended waiting periods to ensure that the Congress will have a full opportunity to avail itself of the bill's review procedures."

Section 216 creates an oversight and checking process for Congress to review and disapprove of executive actions related to Russia sanctions. The section authorizes Congress to issue a "joint resolution of disapproval" that would halt disapproved presidential actions through a fast-tracked procedure. But ultimate disapproval would require presidential signature or a veto override, so satisfies constitutional requirements.

President Trump doesn't appear to complain about this ultimate disapproval procedure. Instead, he complains about the section's procedure to "extend the review period" in violation of Article I, section 7. In particular, section 216 temporarily halts presidential actions when they're under consideration by Congress, when the President is considering a joint resolution of disapproval, and when Congress is reconsidering a joint resolution of disapproval. According to the President, the temporary halt during these periods violates the presentment requirement, because the resolution would take temporary effect, even though the President hadn't signed it.

Sections 254 and 257: Coordinating Aid and Ukrainian Energy Security

President Trump objected that these provisions "purport to direct my subordinates in the executive branch to undertake certain diplomatic initiatives, in contravention of the President's exclusive constitutional authority to determine the time, scope, and objective of international negotiations."

Section 254 provides a "Countering Russian Influence Fund" and sets goals and standards for using that money, including specifying how the Secretary of State shall coordinate and carry out activities under the fund and how the Secretary can modify the goals of the fund. It also requires the Secretary to "establish a pilot program for Foreign Service officer positions focused on governance and anticorruption activities" in covered countries.

Section 257 requires the Secretary to "work with the Government of Ukraine to develop a plan to increase energy security in Ukraine, increase the amount of energy produced in Ukraine, and reduce Ukraine's reliance on energy imports from the Russia Federation," provides funding for those efforts, and sets standards and provides for congressional oversight.

Various Sections Restricting Entry to U.S.

Finally, the President objected to various provisions restricting visas to individuals who engage in certain, specified behavior, like supporting Iran's ballistic missile program, violating arms embargos, and the like. The President wrote that these provisions "would require me to deny certain individuals entry into the United States, without an exception for the President's responsibility to receive ambassadors under Article II, section 3 of the Constitution."

http://lawprofessors.typepad.com/conlaw/2017/08/president-trumps-constitutional-signing-statement-on-russia-sanctions-bill.html

Congressional Authority, Executive Authority, News, Separation of Powers | Permalink

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