What to Make of Trump's NDAA Signing Statement
Late in the evening on Monday, Aug. 13, about six hours after President Donald Trump publicly signed the National Defense Authorization Act (NDAA) for fiscal 2019 into law, the White House quietly released a signing statement identifying “constitutional concerns” with more than 50 of the new NDAA’s provisions.
Published by The Lawfare Institute
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Late in the evening on Monday, Aug. 13, about six hours after President Donald Trump publicly signed the National Defense Authorization Act (NDAA) for fiscal 2019 into law, the White House quietly released a signing statement identifying “constitutional concerns” with more than 50 of the new NDAA’s provisions. Among them are several measures specifically intended to address concerns with Trump’s foreign policy, including by imposing limits on troop withdrawals from South Korea, Trump’s engagements with Russia, and U.S. support for the Saudi-led campaign in Yemen. Trump’s statement indicates that these constitutional concerns prevent his administration from implementing these provisions as written. Instead, it states, he intends to interpret and apply them in a manner consistent with his constitutional authorities.
For some, this raised serious alarm bells. Charlie Savage of the New York Times—an experienced observer of presidential signing statements—wrote that Trump’s statement cast the contested provisions as “unconstitutional intrusions on his presidential powers” that “the executive branch need not enforce or obey,” and described it as “the latest example of Mr. Trump’s emerging broad vision of executive power.” Other media coverage similarly described Trump’s signing statement as a “power grab” that left him free to “ignore” restrictions that the NDAA had placed on his conduct—actions that, in the views of one commentator, “Russia is likely to approve of.”
Given the Trump administration’s frequent disdain for presidential norms, such reactions are perhaps understandable. Yet they overstate the actual significance of Trump’s statement. While notable for the number of objections it raises, Trump’s signing statement primarily reiterates long-standing executive branch legal positions. Consistent with these positions, it only implies that a handful of NDAA provisions with clear constitutional issues should be disregarded. The remainder it generally accepts as constitutionally valid, except in certain circumstances in which they may conflict with Trump’s own exclusive constitutional authorities as president—a common refrain in prior administrations’ signing statements. While nothing prevents Trump from adopting an aggressively broad view of his exclusive constitutional authorities at a later date, the statement itself doesn’t do so. And any such effort could still face substantial resistance from Congress—provided, of course, that its members remain engaged and committed to seeing the contested provisions of the NDAA implemented, or Trump otherwise constrained.
What is a Signing Statement?
Presidents have issued statements announcing how the executive branch intends to interpret a given statute—whether at the time of signature or afterward—since at least 1822. The Supreme Court recognizes this ability to interpret statutes as a necessary incident of the president’s constitutional responsibility to “take Care that the Laws be faithfully executed,” though the courts themselves retain the ultimate authority to resolve a statute’s meaning if an interpretation is contested. The use of signing statements to interpret or apply legislation in a manner that avoids constitutional concerns is in turn related to the executive branch’s long-standing position that the president may refuse to enforce at least some statutes that he or she views as unconstitutional. In doing so, the executive branch generally applies interpretive rules similar to those used by the federal courts, which aim to achieve Congress’s intent to the fullest extent possible while avoiding unconstitutional conduct.
Once a relatively obscure practice, the use of signing statements became notorious during the George W. Bush administration, which both used signing statements aggressively and occasionally asserted the ability to disregard statutory limits on the executive’s actions altogether. While many critics associate the two practices, others maintain that the problem was the Bush administration’s underlying constitutional theory of expansive executive power, not the use of signing statements themselves. Regardless, when President Obama assumed office, he repudiated Bush’s signing statements but defended the general practice as “serv[ing] a legitimate function in our system, at least where based on well-founded constitutional objections.” As a result, the Obama administration continued to use signing statements, though less frequently than the Clinton and Bush administrations. Thus far, the Trump administration has done much the same.
Critics of signing statements often equate them to the line-item veto, a practice the Supreme Court has found to be unconstitutional. Instead of issuing signing statements, critics contend, presidents should veto legislation they believe is unconstitutional. Others maintain that this hostility is misplaced. As a practical matter, they argue, presidents are unlikely to be able to veto and renegotiate every piece of legislation that raises constitutional concerns, especially in an era of increasingly common omnibus legislation (like the NDAA). Given this reality, signing statements can actually promote transparency by encouraging the executive branch to share its concerns and describe how it intends to address them as soon as the statute becomes law instead of later when it is being applied. The use of signing statements also allows constitutionally contested statutes to be enacted into law, thereby enabling judicial review (though, for reasons discussed below, it remains relatively rare).
For its part, the Justice Department—which often drafts signing statements, at least in the first instance—has supported the use of signing statements as a means of defending the executive branch’s constitutional prerogatives. Ironically, this may be most important where a president intends to comply with a constitutionally questionable position, as a president’s acquiescence has at times been cited as evidence that the executive branch has accepted Congress’s authority in a particular area. By issuing a signing statement, the president is able to preserve the executive branch’s ability to defend his or her constitutional authority in future litigation, even if he or she ultimately chooses to go along with Congress’s wishes.
Trump’s NDAA Signing Statement
How does President Trump’s signing statement on the NDAA stand out against this past practice? Like several of Trump’s other recent signing statements, it is most similar in style to statements issued by the George W. Bush administration—a fact that no doubt contributed to the level of alarm it raised. While the Clinton administration issued more overall signing statements, the later Bush administration tended to make far more objections to specific provisions. By taking issue with 50 specific statutory provisions, Trump actually sets the record for signing statements relating to NDAAs (and possibly for other types of legislation as well). What’s more, in many cases, Trump only cites specific provisions as examples of a broader trend, meaning that his concerns may apply to an even broader universe of NDAA provisions than those listed.
Yet the number of objections made in a signing statement is an imperfect metric for judging its legal significance. A president who wishes to be more forthcoming about his constitutional concerns may make more objections than his predecessors, even if his views are the same. Moreover, certain legislation may simply raise more good-faith constitutional concerns. This is at least plausible in regard to this year’s NDAA, given the diverse and novel ways in which it seeks to constrain Trump’s foreign and national security policies, several of which push into areas where the president has often asserted substantial—if not exclusive—constitutional authority.
Instead, to evaluate a signing statement’s likely significance, one must also examine the constitutional arguments behind the specific objections it raises. Particularly relevant is the extent to which those arguments comport with or depart from the executive branch’s prior legal positions. The institutions responsible for interpreting the law within the executive branch—in particular, the Justice Department’s Office of Legal Counsel—generally seek to comport with their past precedents, both as a matter of principle and in practice. A signing statement that reflects long-standing executive branch arguments may simply be the product of career civil servants seeking to defend the executive branch’s legal equities. Accumulated precedent also makes such objections more likely to be implemented in a similar manner as prior administrations, which Congress may have taken into account in drafting the statute. By contrast, if a signing statement departs substantially from past executive branch practice, this may be a sign that the current president is advancing new constitutional arguments that his or her predecessors avoided.
In this case, conducting such an analysis shows that the Trump administration’s signing statement is much more in line with prior presidential administrations than some may realize. The following summarizes the results of a detailed analysis of Trump’s signing statement, which is attached to the end of this post as an appendix.
The substance of nearly all of Trump’s objections reflect mainstream executive branch legal positions. The only NDAA provisions Trump implies that he will ignore altogether direct or impose limits on his conduct of diplomacy, measures that prior presidents (and in some cases the federal courts) have consistently found to be inconsistent with the president’s exclusive constitutional authority. Other objections he makes to provisions that demand certain legislative proposals or inject congressional appointments into executive branch institutions also adhere closely to long-standing executive branch positions.
Meanwhile, for provisions that restrict or set preconditions on Trump’s management of foreign and military affairs—including those that seek to constrain his administration’s policies in regard to North Korea, Russia, and Yemen, among others—Trump does not contend that he will ignore these provisions altogether. Indeed, the structure of Trump’s objections actually implies that he recognizes them as constitutionally valid and thus legally binding in ordinary circumstances. He only reserves the right not to comply where doing so would be inconsistent with his constitutional authorities—an admittedly open-ended reservation that prior presidents have nonetheless made in similar situations in the past.
The outlier in Trump’s signing statement is how he handles the NDAA’s various reporting requirements. He explicitly asserts that the information he can be required to disclose by these provisions is limited by executive privilege—a somewhat unusual reservation that only the George W. Bush administration has made routinely. Yet other administrations have asserted executive privilege in regard to similar information, even if they haven’t bothered to assert their right to do so in signing statements. Trump also interprets one reporting requirement relating to civilian casualties arising from U.S. military operations so as to limit it to information that the Defense Department has on hand. He fails to articulate any clear basis—constitutional or otherwise—for this interpretation, which does not have any clear precedents in prior administrations.
All of this more or less comports with what we know about Trump’s approach to his own national security-related constitutional authorities thus far. While he has flaunted presidential norms and conventions in a variety areas, Trump has not yet made dramatic new assertions of constitutional authority over foreign affairs and national security. A report submitted earlier this year to update Congress on changes to the legal and policy framework for the use of force and related national security operations held over from the Obama administration highlighted only a few relatively minor modifications. Even the legal justification for Trump’s signature assertion of execution power—the strikes he has twice pursued against Syria’s Assad regime for its chemical weapons activities, without congressional authorization—builds only slightly on precedents set by his predecessors. In part this is because Trump, like his immediate predecessors, can often cite broad statutory authorizations like the 2001 Authorization for Use of Military Force in support of his actions, meaning he does not need to rely on his constitutional authority alone. And in part, this reflects the breadth of presidential authority that the executive branch has come to claim as a matter of course, regardless of who is president.
Of course, this does not mean that Trump’s signing statement presents no cause for concern. The Trump administration has shown itself willing to wield executive privilege aggressively in other contexts, which may mean that its objection to the NDAA’s reporting requirements will have a significant impact on the amount of information disclosed. Moreover, this would be in sync with the Trump administration’s policy reservations about transparency on national security issues as well as other policies it has adopted limiting it. Trump’s poorly explained pushback on civilian casualty reports is similarly concerning, particularly as apathy about the impact of military operations on civilians has become a significant point of criticism for his administration. And Trump’s open-ended objections relating to his foreign affairs and commander in chief authorities do still leave open the possibility that he will ultimately adopt aggressive constitutional views that severely undermine the NDAA’s implementation, even if he has not chosen to do so thus far.
The signing statement alone, however, is not an indicator that any of these worst-case scenarios will come to pass. If anything, it helps to flag these as issues to watch closely as the Trump administration proceeds to implement the NDAA, when other institutions—most notably Congress—will have opportunities to further guide its actions.
What Comes Next...
Regardless of the ultimate scope of its constitutional objections, the Trump administration seems likely to implement some provisions of the NDAA in a manner that Congress did not intend—or at least, not as they were drafted. How will these conflicts between Congress and the executive branch—both of whom presumably contend to be acting in line with the constitution—be resolved?
In many cases, no such conflict will ever arise. Some of the NDAA’s most controversial provisions—on recognition in Crimea, troops in North Korea, and cooperation with Russia, to name a few—only have legal effect if Trump wishes to take certain extreme actions. In this sense, they serve as guardrails, making Congress’s objections clear and triggering a political (or even constitutional) fight if Trump steers U.S. foreign policy off the road. If they have the deterrent effect intended, this will never occur and the debate over the constitutionality of these provisions will remain primarily academic.
Other NDAA provisions, however, must be either applied or ignored at some point. How the Trump administration chooses to do so is subject to judicial review, but in practice this rarely occurs. While the political question doctrine is no longer an obstacle to such adjudication, other legal doctrines—such as standing, ripeness, and mootness—often make legal challenges difficult. Moreover, such litigation can take substantial time, making it less useful for resolving conflicts over provisions that relate to particularly time-sensitive decisions. And until the courts issue a contrary ruling, the executive branch’s interpretation is likely to remain the operational one.
For these reasons, these conflicts are most likely to play out through continued dialogue among the political branches. In some cases, the president may succeed in persuading Congress to concede on a particular issue, either by accepting his interpretation or amending the contested provision. For example, after a prior NDAA prohibited U.S.-Russian military cooperation, the Trump administration interpreted that prohibition as not reaching efforts to de-conflict U.S. and Russian military operations in Syria. While this interpretation had little support in the text of that provision—and in fact ignored a waiver provision seemingly designed for such purposes—Congress not only accepted it with no apparent controversy but revised the prohibition in this year’s NDAA to exempt de-confliction activities.
That said, if the president persists in an interpretation with which it does not agree, Congress has ways it can put additional pressure on him. The most direct method is to enact penalties for non-compliance through follow-on legislation, most often by withholding funding—an area widely seen as within Congress’s constitutional prerogative—from certain administration priorities. Indeed, several provisions in the new NDAA play this role by restricting certain security assistance funds until the executive branch provides Congress with reports on the U.S. strategy in Iraq and Syria that it requested in last year’s NDAA but never received. (And notably, while Trump’s signing statement raises concerns with these provisions, he focuses on preconditions and reporting requirements contained in each, not the funding restriction—an omission that may reflect the Trump administration’s tacit acceptance of the extent of Congress’s power of the purse.) That said, the president’s veto authority can make enacting such retributive measures difficult. Hence members of Congress may instead pursue other retributive measures, such as holding up Trump administration nominations. Or they may seek to use letters to senior officials, floor statements, and congressional hearings to try and bring these conflicts to the attention of the ultimate arbiter: the voting public, whose decisions provide the clearest incentives for the political branches.
Regardless, neither the NDAA nor Trump’s signing statement are likely to control how these conflicts will be resolved. Instead, they are merely opening salvos in a new round of inter-branch dispute, which is arguably the defining feature of our separation of powers. Those who are inclined to read the worst into Trump’s actions may wish to bear this context in mind, as the constraints it imposes can lead even him to moderate his actions on occasion. And those who applaud Congress for finally taking steps to reign in the Trump administration in the NDAA should ensure that members of Congress exercise the follow-through needed to ensure those provisions have their intended effect.
The following is a detailed analysis of the objections relating to constitutional concerns that President Donald Trump made in his recent signing statement for the National Defense Authorization Act for fiscal year 2019. Such objections can generally be divided into three categories: (1) that a statutory provision is facially unconstitutional; (2) that a provision may be unconstitutional as applied in certain circumstances; and (3) that a contested provision should be interpreted in a certain way that saves it from unconstitutionality. All three are on display in Trump’s NDAA signing statement.
Assertions of Facial Unconstitutionality
In his signing statement, Trump never explicitly states that he intends to disregard any NDAA provisions as facially unconstitutional. But this is the implicit outcome of his objection that several NDAA provisions “dictate the position of the United States in external military and foreign affairs.” Specifically, he points to Sections 1207 and 1289, which direct U.S. officials to enter into agreements with foreign entities, and Section 1257, which instructs U.S. military personnel to provide advice to the Taiwanese military. He also cites Section 1241, which prohibits the use of funds for any action that would recognize Russian sovereignty over Crimea. In response, Trump indicates that he will implement these provisions “consistent with [his] exclusive constitutional authorities as Commander in Chief and as the sole representative of the Nation in foreign affairs, including the authorities to determine the terms upon which recognition is given to foreign sovereigns, to receive foreign representatives, and to conduct the Nation’s diplomacy” (emphasis added).
This assertion of exclusive constitutional authority—meaning that Congress can neither supersede nor limit that authority—strongly implies that Trump believes he can disregard these provisions. Each offending provision does, as he describes, “dictate” an outcome that is within the scope of exclusive authority that Trump claims, creating an irreconcilable conflict. Yet this position is neither novel nor particularly controversial. The executive branch has consistently maintained that it has exclusive constitutional authority over the conduct of diplomacy, a position with which the federal courts have generally agreed. Accordingly, prior administrations have repeatedly used signing statements to object to similar provisions directing diplomatic engagements. The same is true for recognition decisions like those affected by Section 1241 on Crimea, which the Supreme Court has unequivocally held are within the president’s exclusive constitutional authority. As a result, none of these objections seem objectionable; if anything, they appear well-founded.
Assertions of As-Applied Unconstitutionality
For most other NDAA provisions, Trump takes a less clear-cut approach: the signing statement notes that various provisions could, in certain circumstances, come into conflict with the president’s constitutional authorities, but does not describe precisely where or how. In several cases, this allows the executive branch to raise the prospect of a constitutional conflict while retaining flexibility in later applying the terms of the NDAA to specific circumstances—including the flexibility to implement those provisions more or less as written. Yet it also leaves open the possibility that Trump will eventually adopt an overly broad view of his countervailing constitutional authorities, interfering with the NDAA’s implementation more than one might otherwise expect.
Authority as Commander in Chief
Trump begins his signing statement by objecting to several NDAA provisions that “restrict [his] authority to control the personnel and materiel [he] believes to be necessary or advisable for the successful conduct of military missions.” As examples, he cites Section 112, which directs the deployment of certain anti-missile batteries, and Section 1665, which limits reductions in the number of deployed intercontinental ballistic missiles. He also points to Sections 147 and 1017, which prohibit the use of funds for retiring certain types of military equipment. Trump states that he will interpret all such provisions “consistent with [his] authority as Commander in Chief.”
Separately, Trump also discusses two provisions prohibiting the transfer of detainees from Guantanamo Bay to the United States (Section 1033) and certain foreign countries (Section 1035). While he emphasizes that he intends to continue detention operations in Guantanamo Bay, Trump nonetheless reiterates the “longstanding position” of the executive branch that, “under certain circumstances, restrictions on the President’s authority to transfer detainees violates constitutional separation-of-powers principles, including the President’s constitutional authority as Commander in Chief.”
Past presidents have raised similar concerns about statutory provisions directing the use of military personnel and equipment or otherwise seeking to regulate the conduct of military operations. And both the Obama and Trump administrations have previously objected to Guantanamo Bay transfer restrictions like those in Sections 1033 and 1035. This reflects the executive branch’s longstanding position that the president’s constitutional authority as commander in chief provides him control over an array of tactical and operational military decisions. Yet the executive has been less clear about where this authority is exclusive and where it is a concurrent authority shared with Congress (let alone an exclusive authority of Congress). Trump’s objections embrace this ambiguity by not stating precisely where the contested provisions and the president’s Commander in Chief authority might conflict, or even making his constitutional concerns contingent on any claims of exclusive constitutional authority. For this reason, it’s possible that the Trump administration will find no specific conflict worth contesting and simply implement these provisions more or less as written, using Trump’s signing statement as a means of preserving the executive branch’s legal equities. Or Trump could embrace a broad view of his Commander in Chief authorities that allows him to disregard these provisions altogether. The latter, however, seems less likely, if for no other reason than the signing statement itself implies that the Trump administration accepts the view that those provisions relate in substantial part to concurrent, not exclusive, constitutional authorities.
Conditions on Military and Diplomatic Actions
Relatedly, Trump also objects to NDAA provisions that “require the Congress receive a certification or notification before the President directs certain military or diplomatic actions.” Several of the examples he cites are clearly intended to constrain aspects of his administration’s foreign policy by, for instance, setting limits on military cooperation with Russia (Section 1247), troop reductions in South Korea (Section 1264), and the provision of air refueling services to the Saudi-led coalition in Yemen (Section 1290) unless specific executive branch officials (often the Secretary of Defense) certify that certain conditions have been met. Trump states that he intends to maintain the “longstanding understanding” that such provisions “encompass only actions for which such advance certification or notification is feasible and consistent” with “[his] exclusive constitutional authorities as Commander in Chief and as the sole representative of the Nation in foreign affairs” (emphasis added).
Trump is correct that past administrations have advanced the “feasible and consistent” position when objecting to similar statutory preconditions, though he fails to mention that these prior uses have all related to one specific set of congressional notification requirements for certain military exercises. Other administrations have, however, similarly addressed statutory preconditions on certain activities by asserting that they will not comply wherever those provisions conflict with the president’s exclusive constitutional authorities. The “feasible and consistent” formula is simply another version of this approach—one that explicitly accepts that the identified provisions are legally binding in areas of concurrent authority with Congress. So, for example, the Trump administration may feel compelled to comply with the limits that Section 1264 puts on on troop levels in South Korea in the ordinary course of business. Yet if there were a regional emergency threatening U.S. citizens—circumstances in which most would agree that the president has the exclusive constitutional authority to take action—and U.S. troops in South Korea were the only forces able to respond, Trump could likely re-deploy those soldiers to address the crisis on the grounds that making the required certification was not “feasible and consistent” with his exercise of this exclusive constitutional authority. Of course, what the Trump administration considers to be within the president’s exclusive authority could extend well beyond such circumstances, especially if it were willing to depart from executive branch precedent. The adoption of the “feasible and consistent” standard, however, suggests this is less a threat than one might think, as it actually implies that the Trump administration accepts the validity of the NDAA provisions to which its applied in at least some scenarios.
Later in his statement, Trump addresses NDAA provisions that “purport to mandate or regulate the submission to the Congress or the publication of information protected by executive privilege.” This includes an array of reporting provisions, including one that requires the public disclosure of the number of U.S. soldiers deployed overseas (Section 595) and others that demand reports on topics ranging from NATO cyber defense (Section 1281) to criminal activity in Central America (Section 1287). Trump contends that he will implement such provisions consistent with his “constitutional authority to withhold information” that “could impair national security, foreign relations, law enforcement, or the performance of the President’s constitutional duties.”
Other recent administrations have used signing statements that set similar limits on reporting requirements—including the George W. Bush administration, which did so frequently. The principle of executive privilege underlying these objections—namely, that the president has the constitutional authority to withhold certain sensitive information from disclosure, at least absent a strong public interest to the contrary—is well-established within the executive branch and has been repeatedly invoked in relation to foreign affairs and national security. In this sense, the Trump administration is not necessarily doing anything different from prior administrations in making these objections in advance. That said, the administration has shown itself willing to make broad claims of executive privilege in other contexts that likely exceed what prior presidential administrations have argued. And it has expressed policy reservations with excessive transparency in national security matters. Hence, this is one area where it seems likely that the Trump administration may restrict the NDAA further than prior presidential administrations might have.
Trump also discusses provisions that would “require executive branch officials . . . to recommend certain legislative measures to Congress,” on topics ranging from the process for re-selling military equipment (Section 627) to human rights vetting (Section 1205). He asserts that he will treat these provisions—which often require that such recommendations address specific issues or contain specified information—“consistent with Article II, section 3 [i.e., the Recommendations Clause] of the Constitution, which provides the President the discretion to recommend to the Congress only ‘such Measures as he shall judge necessary and expedient.’”
This argument is familiar territory for the executive branch, which has advanced it in numerous signing statements across several presidential administrations. In effect, it means that the president only believes he is obligated to recommend legislation that he believes is actually advisable, regardless of what the NDAA requires. As a result, the executive branch generally treats such provisions as advisory, not obligatory. In this regard, Trump’s position appears entirely consistent with prior administrations.
Congressionally Appointed Personnel
The president’s signing statement also addresses one provision that “deepen[s] existing violations of the Appointments Clause, the Incompatibility Clause, and the separation of powers” already in the law. The offending provision, Section 739, is only a sentence long and serves to expand the number of directors of the Henry M. Jackson Foundation for the Advancement of Military Medicine that are appointed by members of Congress. Nonetheless, Trump points back to President Ronald Reagan’s signing statement regarding the establishment of the foundation. He accurately asserts that Reagan was concerned with the fact that the foundation seemed to make congressionally-appointed officials responsible for executing relevant legal requirements and signed on the understanding that Congress would remedy these constitutional defects. As this has not happened, Trump directs the attorney general and secretary of defense to confer on how best to do so.
Though the relevant statutory provisions have been amended several times since the foundation’s establishment, Trump is the first president since Reagan to raise these specific objections in a signing statement—and the first to imply that, following consultations between the attorney general and secretary of defense, his administration will take unilateral steps to resolve the constitutional concerns he identifies. That said, these concerns are established issues that prior administrations have raised through signing statements in other contexts. Hence, Trump’s signing statement again appears consistent with the actions of his predecessors—though one will have to wait to pass judgment on how his administration actually chooses to address these concerns.
Saving Interpretations
Finally, for the remaining two NDAA provisions he discusses in his signing statement, Trump actually offers specific interpretations that—at least in one case—are intended to save the provision from any unconstitutional applications.
The first, Section 1051, establishes a new advisory commission on artificial intelligence, the majority of whose members are to be appointed by Congress. Trump objects to NDAA language placing this commission “in the executive branch,” as doing so with entities that contain legislative branch appointees would be inconsistent with “the separation of powers.” Instead, he indicates that his administration will “treat the commission as an independent entity, separate from the executive branch.” In doing so, Trump is acting consistent with prior presidential administrations. His objection reflects longstanding concerns within the executive branch. And the saving interpretation he offers effectively copies an approach that the Obama administration pursued in similar circumstances.
