Tuesday, August 14, 2018
President Trump late yesterday issued a breathtaking constitutional signing statement on the John S. McCain National Defense Authorization Act for Fiscal Year 2019. The President called out dozens of provisions for impinging on the commander-in-chief authority, the foreign affairs authority, the appointments authority, executive privilege, and the President's authority to recommend legislation.
Perhaps most alarming, the President identified 18 separate sections that require public disclosure or reports to Congress on various topics as categorically "protected by executive privilege."
My Administration will treat these provisions consistent with the President's constitutional authority to withhold information, the disclosure of which could impair national security, foreign relations, law enforcement, or the performance of the President's constitutional duties.
The move pits the President's inherent Article II powers against Congress's powers to appropriate funds, its war powers and powers over the military, its foreign-relations powers, and its oversight authority (to say nothing of any interest or right that the people have in knowing what their government is up to). But unless Congress is willing to push back (for example, by issuing and enforcing subpoenas for reports required by the Act, but over which the President has claimed a categorical "executive privilege"), or unless a person or group has standing to challenge any of the President's rejection of funding restrictions or requirements or appointments matters, these claims will never see the inside of a courtroom.
If not, then the President will have effectively line-item vetoed a whopping 50 or more provisions of a single Act of Congress, with no check.