Statement by the President on Signing the National Defense Authorization Act for Fiscal Year 2017

Bill and Statement signed December 23, 2016

Obviously, I have not been monitoring Presidential actions for very long, but this is the first time I have encountered a significant difference of opinion between the President and Congress on a bill signing. The Statement addresses several sections in the bill the President has concerns about including some constitutional issues, especially related to the separation of powers.

Parts of the bill have to do with cyber-security and the management of those efforts. I will quote the most interesting sentence by the President with regard to those parts of the bill:

“Although I appreciate the Congress’s interest in strengthening our Nation’s cyber capabilities and ensuring that the NSA and CYBERCOM are best positioned to confront the array of cyber threats we face, I do not support these provisions as drafted:  the Congress should leave decisions about the establishment of combatant commands to the executive branch and should not place unnecessary and bureaucratic administrative burdens and conditions on ending the dual-hat arrangement at a time when the speed and nature of cyber threats requires agility in making decisions about how best to organize and manage the Nation’s cyber capabilities.”

Rather than attempt to summarize this statement, I am going to simply list some of the issues the President addresses.

  • Changes the bill imposes on the Defense Department disregarding advice of the leaders of the department
  • Failure again to authorize funding to close the Guantanamo Bay facility
  • Unnecessary restrictions on transfer of detainees
  • Several items that raise constitutional concerns

I will quote the last section of the statement so you can get a more detailed sense of what some of the President’s constitutional concerns are in this bill.

“Several other provisions in the bill also raise constitutional concerns.

First, section 507 of the bill would authorize certain cabinet officials to “drop from the rolls” military officers without my approval.  The Constitution does not allow Congress to authorize other members of the executive branch to remove presidentially appointed officers, so I will direct my cabinet members to construe the statute as permitting them to remove the commission of a military officer only if the officer accepts their decision or I approve the removal.

Second, section 553 of the bill would establish a commission, composed primarily of members appointed by the Congress, in the executive branch.  Because the commission contains legislative branch appointees, it cannot be located in the executive branch consistent with the separation of powers.  My Administration will therefore treat the commission as an independent entity, separate from the executive branch.

Finally, section 1263(d) purports to require me to determine whether a foreign person has committed a sanctionable human rights violation when I receive a request to do so from certain members of Congress.  Consistent with the constitutional separation of powers, which limit the Congress’s ability to dictate how the executive branch executes the law, I will maintain my discretion to decline to act on such requests when appropriate.”

In my opinion, this is an important and significant signing statement. It clearly states the President’s concerns with the bill, sometimes in forceful language. We all should be reminded that President Obama is a constitutional scholar and that gives unusual weight to his arguments. It is well worth reading the statement in its entirety, so I encourage you to do so. Follow this link to see the full statement.


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