Trump says the Russia sanctions bill is unconstitutional. He’s mostly right.

Trump Says the Russia Sanctions Bill Is Unconstitutional. He’s Mostly Right.

Trump Says the Russia Sanctions Bill Is Unconstitutional. He’s Mostly Right.

The law, lawyers, and the court.
Aug. 2 2017 5:37 PM

Trump Says the Russia Sanctions Bill Is Unconstitutional

He’s mostly right.

U.S. President Donald Trump
President Donald Trump speaks during a Medal of Honor ceremony in D.C. on Monday.

Alex Wong/Getty Images

President Donald Trump said on Wednesday that the Countering America’s Adversaries Through Act, passed by the House and Senate last week with the aim of strengthening sanctions against Iran, North Korea, and Russia, includes “a number of clearly unconstitutional provisions.” He signed the bill anyway, knowing that supporters of the legislation had more than enough votes to override any veto. Trump, though, accompanied his signature with a signing statement delineating the particular provisions his administration thinks are unconstitutional.

Given the president’s penchant for bogus constitutional claims, the signing statement is surprisingly accurate in much of its legal analysis. Not all of his assertions are consistent with Supreme Court precedent, but some certainly are, and the president is correct in his topline conclusion that the bill contains a number of clearly unconstitutional elements.

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In particular, Trump is correct that the sanctions bill violates Article I, Section 7 of the Constitution, which sets out the procedure by which legislation can become law. Article I, Section 7 says that for a bill or a resolution to become law, it must be passed by both houses and presented to the president, who then has 10 calendar days (excluding Sundays) to sign it or veto it. If he vetoes it, Congress can override his veto with a two-thirds vote of both the House and the Senate. But until the president signs the legislation or both houses override his veto, the bill or resolution can have no legal effect. As the Supreme Court ruled in 1983’s INS v. Chadha, the requirement of the president’s signature or a veto override applies to any legislative act that alters “the legal rights, duties, and relations of persons … outside the Legislative Branch.”

The sanctions bill establishes a new protocol allowing Congress to review—and potentially to block—any action by the president that would lift sanctions imposed under the Obama administration against the Putin regime. If the president seeks to lift those sanctions, then Congress will have an opportunity to pass a joint resolution disapproving of the president’s action. After such a joint resolution passes the House and the Senate, the president will have to wait at least 12 days before lifting the sanctions. The minimum 12-day waiting period applies even if the president vetoes the joint resolution, and even if the House and Senate fail to override the president’s veto. (If the president accedes to the joint resolution, or the House and Senate override his veto, then the sanctions remain in place permanently.)

As I argued while the legislation was pending, the new protocol flies in the face of Article I, Section 7. Under the new protocol, the House and the Senate can trigger a 12-day waiting period on the lifting of sanctions by a simple majority vote. In other words, without a presidential signature or a two-thirds majority, the House and Senate can alter—temporarily—the legal rights, duties, and relations of individuals who want to transact with Russia. But recall that under Article I, Section 7, the House and the Senate can never pass legislation—even temporary legislation—by a simple majority vote. While President Trump says he will “honor the bill’s extended waiting periods,” he is right to note that the bill as written includes a constitutional flaw.

Trump also objects in his signing statement to sections 253 and 257 of the sanctions legislation, which set forth U.S. policy with respect to the territorial boundaries of Russia and its neighbors. Section 253 says the United States “does not recognize territorial changes effected by force, including the illegal invasions and occupations of Abkhazia, South Ossetia, Crimea, Eastern Ukraine, and Transnistria”—areas in which Russia or Russian-backed forces have made inroads. Section 257 says that “policy of the United States” is “to never recognize the illegal annexation of Crimea by the Government of the Russian Federation.” President Trump says those provisions “purport to displace the President’s exclusive constitutional authority to recognize foreign governments, including their territorial bounds.”

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As a matter of Supreme Court precedent, Trump is right in this regard as well. In a 2015 case called Zivotofsky v. Kerry, Justice Anthony Kennedy wrote for a majority of the Supreme Court that “[t]he President’s exclusive recognition power encompasses the authority to acknowledge, in a formal sense, the legitimacy of other states and governments, including their territorial bounds.” This dispute is symbolic because the relevant policy statements in the sanctions bill are symbolic, too. But Trump is correct that under Zivotofsky, it’s left to the president—not Congress—to decide what territorial lines the United States recognizes.

Trump further notes that various provisions in the sanctions bill that bar certain Iranian, North Korean, and Russian individuals from entering the United States infringe upon the president’s authority under Article II, Section 3 to “receive ambassadors” from foreign states. Here too, Trump has a point: At least under the Zivotofsky decision, it does appear that the president rather than Congress gets to decide which diplomats are admitted to the country. For now, the conflict is entirely hypothetical: Trump has not pointed to any particular diplomat whose admission would be barred under the new sanctions bill. But if the hypothetical comes to pass, it is doubtful that Congress could tell the president which foreign diplomats he can or cannot receive.

Another of the claims in Trump’s signing statement stands on shakier constitutional ground. The sanctions bill sets up a $250 million “Countering Russian Influence Fund” and instructs the secretary of state to use that money for a variety of purposes. One purpose is to protect European and Central Asian democracies from Russian cyberattacks; another is to help those countries reduce their dependence on Russian energy. President Trump says this amounts to Congress “direct[ing] 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 objectives of international negotiations.”

The Constitution does not, however, give the president exclusive authority to determine how foreign aid dollars shall be used. To the contrary, it gives the power of the purse to Congress. Congress acts well within that power when it tells the secretary of state where and how to spend foreign aid funds. On this point, President Trump overstates his case.

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Importantly, the constitutional infirmities in the new sanctions legislation are not fatal to the bill as a whole. If the bill is ever challenged in court, the unconstitutional provisions could be “severed,” and the rest of the legislation could still stand.

Why, then, do these highly technical constitutional violations matter at all? For the formalist, the answer might be that even slight deviations from the constitutional separation of powers are offensive. But the unconstitutional provisions in the sanctions bill should matter even to those who are less focused on legal niceties.

The infringements on executive authority in this sanctions bill offer an initial indication that the House and Senate will seize on this president’s weakness to extend Congress’ power. With his political capital ever dwindling, Trump will be constrained in his ability to fight back. The sanctions bill thus marks a slight but notable shift in the balance of power between the executive and legislative branches on matters of international relations. And while it would be a mistake to place too great an emphasis on this single development, it would also be a mistake to overlook an early sign of a broader transformation in the roles of the president and Congress in foreign affairs—a transformation that is already underway.

One more thing

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