1st Signing Statement

What happened? As far as I can tell, there were few high-profile national media reports noting the first official signing statement by this president. It could be my own “controversy fatigue” resulting from trying to follow this president’s executive actions has contributed to my missing this earlier, but at least I finally woke up. After more or less on a whim deciding to check for signing statements, I found this one.

I now have only a vague recollection of reading or hearing something about medical marijuana and federal law enforcement, but I seem to remember it as a decision of the Justice department rather than the president. Anyway, upon signing the appropriations bill to extend funding of the federal government, POTUS 45 attached a signing statement.

Before posting my thoughts here, I decided to do some cursory looking at some previous appropriations bills and any accompanying signing statements to see how frequently such statements were issued and to see if other presidents (and their legal counsels/Justice Departments) had objections with some of the laws’ provisions.

It turns out signing statements are fairly common for appropriations bills and it appears sometimes for very good reasons. Some provisions in these omnibus bills are obviously inserted to secure certain legislators’ votes in favor of the bill whether or not they are wise or even legal provisions. When provisions are unconstitutional, they should be flagged. Most often the presidential objections have to do with limitation of the power of the president. That is true of this signing statement as well.

However, this statement includes some sections that are less justifiable. For example, the following paragraph:

Division B, section 537 provides that the Department of Justice may not use any funds to prevent implementation of medical marijuana laws by various States and territories.  I will treat this provision consistently with my constitutional responsibility to take care that the laws be faithfully executed.

I read this to mean “You (Congress) may say we cannot spend money to stop implementation of state laws allowing medical marijuana, but I intend to ignore that part of this appropriations bill under the guise of “faithfully executing laws”.

There are other equally or more alarming parts of this current statement. It makes me wonder why this was not a bigger story on May 5 and the days following. So far my best answer to that question is the media were too focused on the threats to shut down the government to pay close attention to the bill itself or the signing statement that came with it. It’s almost as if as soon as it passed both houses of Congress the media breathed a sigh of relief and moved on to other things.

It looks like I am going to have to pay closer attention to the Statements and Releases section of the White House website even if it means wading through a bunch of stuff of far less interest or relevance to my relatively focused blog.

Official Title:

Statement by President Donald J. Trump on Signing H.R. 244 into Law

Signing statement dated May 5, 2017

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.

Two Signing Statements of December 16, 2016

I have been somewhat remiss in not monitoring the Statements section of the White House website in the last few weeks. Today I discovered there are some that have occurred during that time.

On December 16, 2016 two statements were attached to bills signed that day:

  • Statement by the President on the Water Infrastructure Improvements for the Nation (WIIN) Act
  • Statement by the President on Signing the Ensuring Access to Pacific Fisheries Act

Neither of them appear to be controversial as both bills are bi-partisan in their support.