The Trump administration has refused to submit a report to Congress, as required by federal statute, providing a determination whether Saudi Arabia’s Crown Prince Mohammed bin Salman and other Saudi officials were responsible for the murder of Washington Post journalist Jamal Khashoggi. What has not received significant attention is that the Trump administration’s position is based on a signing statement by President Barack Obama, who claimed a prerogative of the President to decline to submit a report. I thought to draw attention to this issue, and ask top legal experts for their views on the constitutionality of the executive branch’s position. What follows is the prompt that I sent to all the experts, and their very thoughtful responses.
I posed the following question:
The Senate Foreign Relations Committee Chair Senator Risch announced that the administration will brief the committee this week about possible Global Magnitsky Act sanctions for Jamal Khashoggi’s killing. The briefing follows the administration’s stating that it will not be sending Congress a full report on the subject despite a bipartisan letter by several Senators, including the chair and ranking member of the Committee, requesting a report. The Magnitsky Act purports to require a report from the President in response to such a request.
1. Section 1263(d) of the Global Magnitsky Act (found in the FY17 NDAA) requires that, when requested by the chair and ranking member of “an appropriate congressional committee,” the President must respond within 120 days with a classified or unclassified report that: (a) determines whether one or more foreign persons has engaged in or is responsible for “extrajudicial killings, torture, or other gross violations of internationally recognized human rights;” and (b) includes “a statement of whether or not the President imposed or intends to impose sanctions with respect to the person.” Is this provision unconstitutional in light of INS v. Chadha, as reflected in a signing statement by the Obama administration and a recent statement by the Trump administration?
President Obama’s signing statement read:
“[S]ection 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 refusing to provide a full report to Congress on the Khashoggi killing, including specifically on the potential responsibility of Saudi Crown Prince Mohammed bin Salman, the Trump administration stated:
“Consistent with the previous administration’s position and the constitutional separation of powers, the president maintains his discretion to decline to act on congressional committee requests when appropriate.”
2. What explains the political dynamics here? Why would Congress enact a provision that may run afoul of INS v. Chadha? Might it have to do with divisions within Congress during the legislative drafting process regarding what should be required under the Act? Or a different interpretation of the Constitution’s requirements? What are the potential benefits or dangers of Congress continuing to write this type of legislation? Are there better solutions to achieving congressional interests while avoiding these constitutional concerns?
3. What happens once the President signs legislation into law but attaches a statement like the one President Obama provided for this section of the Magnitsky Act? May a President reserve the right to adhere or decline to act on Section 1263(d) “when appropriate” and “consistent with the constitutional separation of powers, which limit the Congress’ ability to dictate how the executive branch executes the law,” as President Obama asserted in his FY17 NDAA signing statement?
Tess Bridgeman (@bridgewriter), Senior Editor of Just Security. She served as Special Assistant to the President, Associate Counsel to the President, and Deputy Legal Adviser to the National Security Council (NSC):
As President Obama’s statement on signing the FY17 NDAA indicated, requests received pursuant to section 1263(d) are just that: requests for Executive Branch action that do not carry the force of law because they do not satisfy the bicameralism and presentment requirements of the Constitution. While certainly different in nature than the activity at issue in the Supreme Court’s INS v. Chadha ruling, the purported requirement here is still “legislative” in purpose and effect – it is requiring the President to conduct an investigation of a specific person, make a determination as to whether that person engaged in sanctionable conduct, and prepare a report on that determination. In short, it seeks to compel a series of specific actions (even if that action culminates in a report), and that requires legislation enacted as prescribed in our Constitution.
In contrast, if the Congress merely seeks information, it has other mechanisms available to it that do not require bicameralism or presentment and are often effectuated by only two legislators: it can simply request information, it can hold hearings, and if the inter-branch accommodation process breaks down, it can use its subpoena power if needed. A key distinction is that these mechanisms are used to seek information about action the Executive Branch has already taken (or perhaps intends to take), rather than compelling action in the first instance.
That does not mean good faith requests made by Chairs and Ranking Members, under section 1263(d) or otherwise, should be dismissed or go unanswered. For a host of reasons, the President should engage seriously with this request, even if he characterizes actions taken in response as voluntary. But good faith engagement by the Executive Branch should not be mistaken with compliance out of legal obligation. Likewise, Congress should not resort to including mechanisms that fail to satisfy the Constitution’s bicameralism and presentment requirements in statutes in order to engage in constructive dialogue and fact-finding vis-à-vis the Executive Branch.
At the end of the day, Congress writes the laws that the President is bound to execute. If Congress wants to create legal requirements for the President to take specific actions – even if those actions are gathering information or conducting an investigation, making determinations, and deciding whether to take certain actions based on such determinations – it may do so. Indeed, many of our existing sanctions statutes work in precisely that way. Congress may even specify considerations the President is to take into account in making determinations or imposing sanctions, as it has done in a number of similar statutes – and did in the very section preceding 1263(d).
Finally, whether it is treated as having the force of law or not, the Senators’ request that the Trump administration determine whether senior Saudi leadership are responsible for Jamal Khashoggi’s murder and impose sanctions accordingly has had a significant impact – it has put a spotlight on the administration’s continued desire to cover for Saudi leadership and sweep the issue under the rug. This shows the power of serious, bipartisan requests to the President and of follow-through on the part of Congress, which have stopped the administration’s attempt to bury truth and accountability.
[Editor’s note: Just Security‘s Marty Lederman has also expressed views consistent with Bridgeman’s analysis. – Ryan Goodman.]
Jennifer Daskal (@jendaskal), Associate Professor at American University Washington College of Law:
I question the framing of this question.
The provision may very well raise the kind of separation of powers concerns that make it unconstitutional. But the answer does not appear dictated by INS v. Chadha.
In Chadha, the Supreme Court addressed the constitutionality of a legislative veto—a very different kind of action than the reporting requirement at issue in the Global Magnitsky Human Rights Accountability Act. Specifically, Chadha addressed the constitutionality of a statute that gave either the House or the Senate, acting alone, the authority to “veto” a decision by the Attorney General with respect to particular deportation decisions.
In Chadha, the Attorney General had, pursuant to his statutorily authorized discretion, decided that that Mr. Chadha, who overstayed his nonimmigrant student visa, should be protected from deportation. The U.S. House of Representatives passed a resolution overturning the Attorney General’s decision in Chadha’s and another five similar cases. The Supreme Court, in ruling the House action unconstitutional, defined the veto power as a “legislative function,” and thus in violation of the legislative requirements of bicameralism and presentment to the President.
Key to the Supreme Court’s ruling was its finding that the House veto action was in fact “legislative.” In determining that the House’s action was legislative, the Supreme Court emphasized that it (a) “had the purpose and effect of altering the legal rights, duties, and relations of persons;” and (b) was a “determination of policy.”
The Magnitsky Act is analogous to Chadha to the extent it permits the chair and ranking member of a relevant congressional committee to trigger an executive action without going through the process of bicameral approval and presentment. But Chadha controls with respect to the Magnitsky Act if and only if the Act’s reporting requirements are understood to have a “legislative character.” And there are important differences between reporting requirements at issue in the Magnitsky Act and the kind of House attempt to overturn an Attorney General decision in Chadha that call that understanding into doubt. In Chadha, Congress directed that a particular person be deported. The Magnitsky Act, by comparison, triggers reporting about whether a particular individual engaged in the kind of human rights abuses that would justify the imposition of sanctions in response. The reporting requirements do not in any way require the executive to impose sanctions, or to alter its view regarding the imposition of sanctions (or not). The requirements do not alter legal rights. And they do not in any way involve a policy decision. At the very least, it seems clear that Chadha does not, absent a further elaboration of the definition of “legislative,” dictate the answer with respect to the reporting requirements in the Magnitsky Act.
In fact, the reporting requirements could, and perhaps should, be understood as necessary to ensure Congress has the information needed to enable it to make the kind of future policy decisions that themselves would in fact be legislative. Those subsequent policy decisions would then thereby trigger the requirements of bicameralism and presentment.
That said, the Magnitsky Act requirements may very well raise separation of power concerns, even if not controlled by Chadha. And in fact, President Barack Obama’s signing statement describes concerns much broader than the legislative veto concerns raise by Chadha. As Obama put it:
“[S]ection 1263(d) [of the Global Magnitsky Act] 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.”
The concern could be expressed as the following: The Act authorizes, but does not require, the President to impose sanctions on those responsible for extrajudicial killings, torture, or other gross human rights abuses in specified situations. It separately authorizes certain members of Congress to demand a determination as to whether or not a particular person engaged in a sanctionable act, and to specify what, if any, sanctions will be imposed as a result.
But there may be times when the executive chooses, for any number of foreign policy reasons, not to even engage in the particular inquiry being demanded, let alone make a formal determination as to whether or not the action is sanctionable, let alone make a determination as to whether or not to impose sanctions. The key question is the following: Can Congress demand, via reporting requirements, that the executive make these kinds of determinations, even in situations where the President would, for whatever reason, prefer not to do so?
If that framing is correct, and I think it is, then the key issue is not about the way the reporting requirement is triggered. It is the nature of what is being requested. And if there is a problem, it would be a problem no matter what procedure Congress used to demand it.
Final caveat: This is a legal, not policy analysis. There are very good reasons why Congress should be asking these questions about the Kashoggi killing. And very good reasons why the administration should respond. But to the extent the administration wants to resist, and resort to constitutional claims in doing so, they have Obama-era statements to rely on. Just for reasons that are not controlled by Chadha.
Joshua Geltzer (@jgeltzer), Founding Executive Director of the Institute for Constitutional Advocacy and Protection as well as Visiting Professor of Law at Georgetown University Law Center.
Whether Congress can constitutionally delegate to a single committee the authority to demand a certain report (here on human rights violations) from the executive branch strikes me as a hard question. The initial instinct to think that Congress can’t do so derives from the Supreme Court’s holding in INS v. Chadha, where congressional experimentation in form was struck down. But the heart of Chadha was the notion that, when Congress legislates, it must do so only through bicameralism and presentment. Is demanding a report from the executive branch–and, moreover, a report on a particular human rights violation within a broader requirement that such reporting will be demanded from time to time–“legislating” in the sense that Chadha was focused on? It’s not the same as the more active congressional role struck down in Chadha; yet at the same time reporting demands imposed on the executive branch are, ultimately, provisions of legislation.
Recognizing the difficulty of this question, I wonder if it’s worth thinking about whether the Senate Foreign Relations Committee has other authorities under which it can obtain essentially the same view of the executive branch. Based on the earlier congressional testimony of CIA Director Haspel, it seems that the executive branch has already reached a final conclusion regarding the human rights question currently of interest to the Committee, or at least is very close to doing so. Rather than calling for a new assessment under the Global Magnitsky Act, with all of the complications I’ve noted above, could the Committee instead subpoena the existing assessment under its subpoena authority, of course allowing it to be provided in classified form as needed?
David Golove, Hiller Family Foundation Professor of Law, New York University School of Law:
The problem with the Chadha objection to Section 1263(d) is with Chadha itself. There are no doubt good arguments that the logic of Chadha extends to a provision like Section 1263(d). Note, however, that Section 1263(d) only activates a reporting requirement and in no way limits or constrains the scope of the executive’s discretion in enforcing a statutory mandate. As far as I am aware, the Supreme Court has never ruled that the logic of Chadha should be extended that far, and there is even less reason to think it would be wise for the Court to do so. Chadha is a profoundly problematic decision that drastically undermines Congress’ ability to check the executive branch. Consider, for example, its impact on President Trump’s phony emergency powers gambit, which is playing out in Congress as I write. As a matter of constitutional policy, it seems perfectly reasonable for Congress to have passed Section 1263(d) as a means of enabling it to exercise effectively its oversight responsibilities in connection with the Magnitsky Act. For reasons that seem easy to understand, Congress decided to delegate to the Chairs and ranking members of the pertinent Committees the judgment about whether reporting is needed in any particular case. That seems a perfectly reasonable and constrained approach – that interferes with no legitimate executive authority – for achieving a valid and important goal. Presumably, in view of Chadha, the alternative would have been for Congress to require the President to provide ongoing reports about every case to which the Act might apply. Clearly, however, that would have required a hugely wasteful expenditure of executive resources (and would only have aggravated concerns about privacy, executive privilege, and classified information). So, rather than extending Chadha into what appears to be a novel area, the better approach would be to reject the Chadha objection and support the enforcement of the statute’s reporting requirement.
Andy Wright (@AndyMcCanse), Senior Fellow and Founding Editor of Just Security. He served as Associate Counsel to President Barack Obama in the White House Counsel’s Office, and he served as Staff Director and Counsel to the national security subcommittee of the U.S. House Committee on Oversight and Government Reform:
In INS v. Chadha, the Supreme Court declared a unicameral legislative veto to be unconstitutional both as a matter of bicameralism (passage by both House and Senate) and presentment (legislation must be presented to the President for an opportunity to sign or veto it). In the period following Chadha, Congress deleted a number of legislative veto provisions from existing law. But thereafter, Congress resumed legislative vetoes to bills. And presidents signed most of them, although often accompanied by a signing statement objecting on Chadha grounds. Congress also invested in novel post-Chadha provisions requiring joint resolutions of approval for certain executive actions and reporting requirements akin to those of the Magnitsky Act.
So why does Congress continue to pass constitutionally suspect legislative veto provisions? Is it ignorance of the constitutional ruling? Does it represent congressional constitutional impunity?
The formal constitutionality of these legal provisions is of utmost importance, and should be discerned in good faith. But in some important respects, the congressional conduct here makes more sense as a matter of interbranch signaling than it does as a matter of formal constitutional legal doctrine. Congress passes these provisions — even after Chadha — as a signal to the executive branch of Congress’s seriousness of purpose with respect to an area of power it delegated to the executive branch. The threat of a legal challenge is often low because it is rare in the existing legislative veto provisions that a particular individual can trace injury directly to Congress’s exercise of it. Rather, these provisions play out in Iron Triangle territory –between an executive branch agency and its authorizing or appropriating committees. Legislative vetoes also serve as oversight forcing functions — legislative tripwires that, if crossed by the executive branch, will arouse congressional interest and trigger interbranch dialogue. Moreover, legislative vetoes represent Congress’s assertion of reserved power in a manner that then helps shape a subsequent policy dispute, tilting it a degree or two in Congress’s favor.
Even if legislative vetoes — and their nouveau cousins — may ultimately be again deemed null-and-void as a formal legislative power, they represent a vibrant assertion of Congress’ soft power.