It is the best of times for power-hungry presidents.
It is the worst of times for the rule of law and the Constitution.
On August 13, 2018, President Donald Trump issued an extraconstitutional signing statement over 50 provisions in the mammoth National Defense Authorization Act (NDAA). It was another step on the nation’s century-long journey towards an omnipotent presidency and a Congress that’s little more than a constitutional ink blot. The president now initiates war on his own, kills American citizens on his own, spies on his citizens on his own, makes treaties on his own, classifies information and operates a secret bureaucracy on his own, and, through executive orders and signing statements, makes laws on his own.
Trump’s NDAA signing statement decreed that the 50 provisions unconstitutionally encroached on the president’s prerogatives as “Commander in Chief and as the sole representative of the Nation in foreign affairs.” Accordingly, he would treat them as of no force or effect despite his signing them into law.
Exemplary is section 1290 of the NDAA. It seeks to disassociate the United States from the grisly human rights crimes perpetrated by Saudi Arabia and the United Arab Emirates in their war against the Houthis in Yemen. Earlier this month, for instance, the Saudi-led and United States-supported coalition bombed a school bus in North Yemen, killing dozens of young boys. The coalition is also starving Yemeni civilians on an industrial scale by blocking humanitarian aid.
Congressional dictation of military or foreign policy as ordained in section 1290 is neither novel nor unconstitutional. During the Spanish-American War, for instance, the Teller Amendment to the congressional declaration of war provided that the United States “hereby disclaims any disposition or intention to exercise sovereignty, jurisdiction, or control over [Cuba] except for pacification thereof, and asserts its determination, when that is accomplished, to leave the government and control of the island to its people.”
And during the Vietnam War, a non-funding bill was passed in 1974 to cap American personnel levels in Indochina at 3,000. Congress enacted the Cooper-Church amendment in January 1971, which prohibited the use of any appropriated funds to introduce ground troops into Cambodia. Legislation enacted in 1973 cut off funds for combat “in or over or from off the shores of North Vietnam, South Vietnam, Laos or Cambodia,” designed to prevent President Richard Nixon from reintroducing troops or bombing if the North Vietnamese violated the Paris Peace Accords. The 1973 bill also terminated funding for U.S. bombing of Khmer Rouge forces in Cambodia.
Section 1290 of the NDAA requires the secretary of state to certify, within 30 days of enactment and biannually thereafter, that the United Arab Emirates and Saudi Arabia are undertaking “urgent and good faith” efforts to support a diplomatic end to the civil war in Yemen. They must also pursue appropriate measures to alleviate humanitarian conditions there, reducing the risk of harm to civilians from military operations and, in the case of Saudi Arabia, taking appropriate actions to reduce delays in shipments. If the secretary cannot make this certification, then Section 1290 prohibits the use of funds for in-flight refueling services for the Saudi-led coalition in Yemen except under a narrow set of circumstances (which includes targeting al Qaeda and the Islamic State). This prohibition may be waived, however, if the secretary of state certifies that it is in America’s national security interest and describes the coalition’s shortcomings that prevented certification.
Section 1290 falls well within Congress’s authority over the offensive use of the military pursuant to the Declare War Clause. President Trump’s contrary unelaborated assertion in his NDAA signing statement is frivolous. Congress, however, has does nothing despite standing on impregnable constitutional ground.
Presidential signing statements are not authorized by the Constitution’s text. They are superfluous to defending the president’s constitutional prerogatives. As elaborated in Federalist 73, the qualified veto power conferred in Article I, section 7 is supposed to be used to defend against unconstitutional congressional encroachments on executive power.
Signing statements, however, are to qualified vetoes what nuclear bombs are to muskets. Qualified vetoes can be overridden by supermajority votes in the House and Senate. Congress, for example, overrode President Nixon’s veto of the War Powers Resolution (WPR) to make it law. In contrast, signing statements are never presented to Congress for approval or rejection. If, in lieu of a veto, President Nixon had issued a signing statement declaring the WPR unconstitutional and void, the law would have been stillborn.
Moreover, qualified vetoes apply to the entire legislation Congress presents to the president. The latter may not pick and choose which provisions will pass into law and which will be vetoed. Thus, President George Washington, who presided over the constitutional convention, acknowledged that he had to either “approve all the parts of a Bill, or reject it in toto.” President William Howard Taft, later chief justice of the Supreme Court, observed that the president “has no power to veto part of a bill and let the rest become law.” The Supreme Court thus held in Clinton v. New York (1998) that the line-item veto power Congress had conferred on the president by statute was unconstitutional.
Such authority would cripple congressional independence from the executive. It’s Congress’s right to, as it often does, combine in a single bill provisions both wanted and unwanted by the president to force a difficult political decision between all or nothing. Likewise, members of Congress routinely confront tough choices in voting on entire bills that contain provisions they both approve of and oppose. Accordingly, signing statements cannot be justified on the theory that the Constitution intended the president to enjoy an easy and uncomplicated political life. As President Harry Truman admonished, “If you can’t stand the heat, get out of the kitchen.”
Signing statements were a rara avis for nearly two centuries before the inauguration of President Ronald Reagan. Then they became epidemic as the American Empire waxed—especially after the dissolution of the Soviet Union in 1991. As I previously wrote, you can’t have an Empire without a Caesar, and you can’t have a Caesar without executive usurpation of legislative power.
Before the Golden Age of Empire, the law was clear. Signing statements were impotent to overcome what Congress had passed. In 1971, President Nixon signed a bill that included a provision directing the withdrawal of U.S. troops from Southeast Asia. A signing statement declared that the provision “does not represent the policies of the Administration.” A year later in DaCosta v. Nixon, a federal district court instructed President Nixon that when he signed the bill, it established U.S. policy “to the exclusion of any different executive or administration policy, and had binding force and effect on every officer of the Government, no matter what their private judgments on that policy, and illegalized the pursuit of an inconsistent executive or administration policy.” No executive statement, including that of the president, “denying efficacy to the legislation could have either validity or effect.” I served on a 2006 American Bar Association Task Force on Presidential Signing Statements and the Separation of Powers Doctrine, and it echoed the federal district court in DaCosta v. Nixon.
Congress is too cowardly to directly resist President Trump’s NDAA signing statement. If it’s going to shirk its full assignment of powers, it might consider a lesser measure: legislation to pass the buck to the federal judiciary by authorizing relevant congressional committees to sue the president seeking declaratory judgments that the signing statement has no constitutional standing. There are several preferable and more muscular congressional options, but politics is the art of the possible, as Otto von Bismarck advised.
Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan and counsel to the Joint Congressional Committee on Covert Arms Sales to Iran. He is a partner in the law firm of Fein & DelValle PLLC.