[This article was first published on Aug. 3, 2017 at 9:55am ET and updated on Aug. 4, 2017 at 7:10am ET]
Just yesterday, an unhappy President Donald Trump signed H.R. 3364, America’s Countering America’s Adversaries Through Sanctions,” which targets a rogue’s gallery of Iran, North Korea and Russia, all of whom pose serious security threats to the United States and its allies. Each of these nations presents somewhat different problems, so I shall confine my attention here to Russia, whose relationship with the United States has fallen as of late into a downward spiral. The Russians have no doubt meddled in American politics, and they have undertaken aggressive actions in the Ukraine, and are poised to take aggressive actions along its borders. It is no wonder that the President, or at least parts of his divided administration, and Congress think that some sanctions should be imposed against Russia. The hard questions are what sanctions, and by whom?
The Congress wants to tie the President’s hands in dealing with Russia. So the legislation sets out a list of sanctions that are now in place, and then indicates that the President is not allow to either terminate or waive any of these sanctions against Russia unless he first goes through an elaborate process whereby he first submits a detailed report that indicates whether or not his action “is intended to significantly altered United States foreign policy with respect to the Russian federation” and then describes the security implications of any such move. During a 30 day period (except in summer recess when it is 60 days) the President is not allowed to at all. If at the end of that period, either House of Congress refuses to accept the President’s judgment, then “the President may not take that action.” The drafting here is somewhat peculiar, because it says that a joint resolution refers to a resolution by either House of Congress, which looks as if a one-house veto is sufficient to upend this matter.
In a recent email correspondence, following the initial publication of this essay, my reading of the statute was questioned by Charlie Savage of the New York Times who suggests other references to the role of Congress in the legislation is inconsistent with this particular piece of text. In his view, the sensible interpretation is that either chamber can initiate the override efforts, but will succeed only if the other chamber goes along with this, which makes the legislation look more like a two-chamber override. But even here there is provision for a presidential veto, at which point the new sanctions law looks as though it takes the course of ordinary legislation, except for the fact that the sanctions law calls for (1) a suspension of presidential sanctions until the matter is resolved in Congress and (2) a further delay of 10 days following any veto, such that the veto does not come into effect during that period—both of which raise difficult interpretive and constitutional issues.
This legislation can be challenged on both policy and constitutional grounds, both of which turn on the effort of the Congress to limit the way in which the President may unilaterally alter the sanctions imposed on Russia.
As a political matter, sanctions are always a tricky tool to operate for all the usual reasons. The sanctions are imposed only by the United States, with the partial cooperation of our allies. In any event, their impact on Russia is doubtful, since Moscow is an old hand at ducking sanctions and can obtain needed resources and services from third parties, often in convoluted transactions that evade detection. In addition, sanctions hurt the U.S. and its partners by causing a reduction in their trade. Worse still, it is a messy business to decide which domestic companies will bear the brunt of these sanctions, which usually has to be determined by divisive internal political processes. As a first cut, the best way to hurt Russia is by opening the spigot that allows American firms to sell cheap products, e.g. natural gas, in ways that force down Russian prices, reduce Russian hard cash reserves, and create good will with new and old trading partners alike. Nations that benefit from buying our goods and services at lower prices have no incentive to defect in the long or short run.
Alas, economic sanctions cannot do the job alone, which means that in general a wide variety of direct sanctions have to be brought to bear on such matters as the movement of cash through the financial sector, prohibitions on the sale of strategic goods, and the removal of Russian operatives. Just to mention the endless permutations involved in putting these sanctions into place, suggests that the key government officials will have to weigh complex strategic options, without any firm compass to guide their path. In such situations, the sensible division of responsibility is for Congress to set out the broad objectives, which can then be implemented by the President on his own accord. In this case, there is within the Trump administration at least the appearance of broad agreement on key elements of foreign policy. Thus Section 253 repeats that the United States iterates its stern objection to the acquisition of territory, including that in Ukraine by force, and Section 257 lists a set of diplomatic initiatives that the President shall take with respect to Ukraine.
In normal times, Congress would entrust the executive to do the heavy lifting in cases of this sort. But these are not normal times. Today, overwhelming bipartisan distrust in Congress against the President has led to the efforts to tie him down. Low levels of trust turns into low levels of delegation. The situation was not helped with the latest revelation—that the President Donald Trump Senior dictated the statement that Donald Trump Junior issued about his ill-fated meeting with Russian operatives—only heightens ongoing distrust which is already evidenced in the investigations of special counsel Robert S. Mueller III into illicit Russian interference into American electoral politics.
The President could have vetoed the legislation, but he knew that this action was pointless, given that his veto would have been quickly overridden by huge majorities, which would only weaken his position further. So Trump decided to enter into treacherous waters by signing the legislation, while issuing a signing statement that outlined his opposition to the certain key features of the legislation.
The strategy of issuing signing statements is one that has been used by his predecessors in office, most notably George W. Bush and Barack Obama. It is one of many tactics by all presidents, Democratic and Republican, to guard their turf against Congress. But the tactic is one that fits only uneasily into the American system of separation of powers, which calls only for a simple veto power without amendment. When the statements just clarify the president’s view, they could be regarded as informational. But with this statement, Trump, like Bush II and Obama, is claiming that the limitations that Congress imposes on his ability to lift or modify the sanctions necessarily encroaches into the area of his exclusive executive authority. This simmering dispute, however, could easily lead to a protracted struggle if Trump makes good on his claims, say, by ordering, his Secretary of State Rex Tillerson to lift or modify sanctions, without going through the laborious process for Congressional oversight set out in the statute. His argument is that the executive branch has to act with expedition in foreign affairs, which cannot be done if the approval process can drag on for weeks if not longer. The question then is whether Congress has the power to attach these strings, or is the matter of delegation strictly an all-or-nothing process.
In addressing this question, the President cites to the 2015 Supreme Court decision of Zivotofsky v. Kerry, in which the Supreme Court held that it was for the President, not for Congress to decide, whether a passport issued to an American citizen of Jewish descent born in Jerusalem could have Israel designated as his place of birth. That choice of words is intended to convey that the United States recognizes that Israeli sovereignty extends to Jerusalem, even though that proposition is among the most contested in the complex relationships between Israel and the rest of the world, including Palestinian groups and key Arab states. The Congress ordered the President and the State Department to stamp Israel on the passports, and the President refused, and Secretary Kerry followed his lead. The Court came down on the side of presidential power. The best ground for that decision rests, I believe, on the powerful truth that there is nothing in either Article I of the Constitution, conferring powers on the Congress, or Article II of the Constitution, conferring powers on the Executive Branch, which speaks clearly and directly to that question. Accordingly, in the absence of textual guidance, the Court looked to custom and practice, and found that at the outset, President Harry Truman set the course of action on Israel, and that presidential control remained thereafter. The Supreme Court treated this as a structural issue and made no effort to decide which of the two policies was better.
Zivotofsky frequently referred to the situation in United States v. Curtiss-Wright, a 1936 decision by Justice Sutherland, which took the position that the President had virtually plenary power to deal with any matter of foreign affairs, deriving his power from a direct grant from the English Crown that bypassed the role of the American colonies altogether—an odd result given the explicit list of enumerated Congressional powers in Article I, Section 8. These provisions give Congress extensive power over foreign affairs and international relations, but one looks in vain to find a provision that deals with foreign aid on the one hand or the imposition of sanctions on the other. Similarly, the same gap arises for there is nothing about the President’s powers under Article II that cover the case. Indeed, the closest that Trump comes to making this claim is to refer to “the President’s exclusive constitutional authority to recognize foreign governments, including their territorial bounds.”
That claim is relevant to the case, but it surely does not foreclose arguments on the other side. The Israeli issues did not have to do with either sanctions or foreign aid. On these issues the long historical tradition makes it clear that foreign aid depends at the very least on Congressional appropriations, so that there is no complete void of textual authority on this point. Nor is it the case that Trump can point to any explicit provision in Article II that gives him the exclusive power that he seeks. Even the situation in Curtiss-Wright is not quite on point, because President Roosevelt there had abundant authority from Congress to prevent the sale of weapons to Bolivia. It is not strictly necessary to determine the scope of Presidential power against Congress when both parties are on the same side of the issue, so the case is at best an imperfect argument for the president.
By the same token, the history and practice on sanctions and foreign aid is probably a lot more complicated than those on the simple on/off question of recognition of foreign powers, so that the key ground for decision in Zivotofsky may not apply to this case. At best we can say that it could easily take more litigation to decide which way this inter-branch conflict should be resolved. But it is quite unlikely that the Court would want to embroil itself in a direct conflict between two branches of government that dominate foreign affairs. After all, Curtiss-Wright and Zivotofsky both raised the issue of presidential power obliquely first in a criminal law suit against a private party and then in a passport application by a private party. I doubt very much that in any direct dispute between the two branches any court will intervene.
The second objection of the president is perhaps on firmer ground insofar as he cites the 1983 Supreme Court decision INS v. Chadha for the proposition that any legislation has to go through the usual processes of passage by both chambers of Congress, which is then subject to both the veto and override provisions set out in Article I, § 7, cls. 2 & 3. The President cites to Chadha in his signing statement, but does not indicate exactly what he thinks that the law provides. Looking therefore at all the possible permutations of the sanctions mentioned above, the President is surely correct that if the legislation involved in this case allows for a one-house veto, it is not in conformity with the Constitutional provision. The same would apply to a two-house override that is not subject to a presidential veto. At this point, the plot thickens because the Sanctions Act does allow for a presidential veto, but of imperfect proportions. The first limitation on that the President’s action is completely barred during the interim period in which the President’s report is on the table until an up or down decision is made. The second limitation, which is less intrusive, provides that if “the president vetoes the joint resolution, the President may not take that action for a period of 10 calendar days after the date of the President’s veto.” This provision is distinctive because the Constitution does not assign any period for ordinary legislation within which the override must take place, although it does state that if the President does not return the legislation to Congress within a 10-day period, it shall become law unless the adjournment of Congress intervenes. The provision appears to impose a second limit on the use of the veto power not found in other legislation, which matters in those cases in which it is clear that there are insufficient votes in either or both chambers to override the veto. So this constraint can bind in some cases, but given the shortness of the duration, it cannot have nearly as much bite as the inability to negotiate while the report is on the table.
The question then arises as to how these practices should be treated. One line of argument focuses on the practice of the one-house veto. But it is also understood that very practice continues even after Chadha. Indeed, the waters are muddied because Chadha was not in line with the common practice before the case and, more strikingly, with the common practice after the decision, where the situation in one law review article was summed up as follows: “The Legislative Veto: Invalidated, It Survives.” In part the argument here is about the application of Chadha in the current case. It is one thing to argue that declaration of one chamber of Congress was sufficient to override a decision by an immigration judge granting Chadha permanent residency in the United States. That action, dealing with the status of a single alien, is far more particularistic than any general statute. So it may well be that this form of delegation could be permissible in cases like Chadha, but not in the removal or modification of sanctions against Russia, which plays out on a far larger stage. In this geopolitical dispute the text of Chadha, not some alleged historical practice, might well control, so that the efforts to skirt the usual rules of bicameralism and presentment fail, given the two novel limitations on presidential power.
I am highly uncomfortable writing any column that says “maybe this or maybe that.” But it seems on reflection that anyone who claims to know how this situation will play out going forward has too much confidence in his or her power of analysis or prediction. The truth is that Zivotofsky and Chadha are hot button topics in American constitutional law. Normally, there is enough comity between the President and the Congress so that calmer minds will avoid these mutually destructive struggles over the allocation of power. But these are not ordinary times, and Trump is not an ordinary president. Even against the will of his best advisors, he seems to thrive on crisis, confusion and chaos, which in the long run exacts a heavy toll on the ordinary business of government. There is a good chance that Trump is right on both of these contested points. But, in the current political climate, there is an even better chance that he will face an uphill battle against Congress and public opinion if he tries to act in a way that avoids the strictures of the recently passed Sanctions Act.